RESERVED

State Consumer Disputes Redressal Commission

U.P., Lucknow.

Appeal No.788 of 2004

Superintendent of Post Offices, Shahjahanpur

Division, Shahjahanpur.                                  ...Appellant.

Versus

1- Mohammad Jamal, Partner Haji Niamatullah

     Safiullah, Mohalla Tareen Tikli, Sadar Bazar,

     City & District, Shahjahanpur.

2- M/s Amit Textile, Rajdhani Rd., Singh Market,

    Shop no.29, Ballia.

3- Union of India through D.R.M., N.E. Rly.

     Gorakhpur.

4- Union of India through D.R.M., N. Rly.

     Moradabad and ors.                             ….Respondents.

Appeal No.868 of 2004

Union of India through Divisional Railway

Manager, Northern Railway, Moradabad.       ...Appellant.

Versus

Mohammad Jamal, Partner Hazi Niamatullah

Safiullah Firm, R/o Mohalla Tarin Tikli, P.S.,

Sadar Bazar, Tehsil, Sadar, District, Shahjahanpur.   

                                                                    ….Respondent.

Present:-

1- Hon’ble Sri Vijai Varma, Presiding Member.

2- Hon’ble Sri Sanjai Kumar, Member.

Dr. U.V. Singh for the appellant/Post Offices.

Sri R.K. Gupta for the respondent/complainant.

None appeared for the remaining parties.

Date 31.10.2017    

JUDGMENT

(Delivered by Sri Vijai Varma,  Member)

Appeal no.788 of 2004 and appeal no.868 of 2004 arise out of the judgment and order dated 28.2.2004 passed in complaint case no.109 of 2004 by the District

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Forum, Shahjahanpur hence, they are decided together. The appeal no.788 of 2004 shall be the leading case.

The facts leading to the appeal no.788 of 2004, in short, are that the respondent no.1/complainant is a partner with a firm dealing in the business of carpets in Shahjahanpur. On 1.8.1999 M/s Amit Textiles of District Ballia purchased goods worth Rs.90,370.00 from his firm but as the complainant was not knowing the OP no.5 hence, he asked them to send the bilty through the bank and the OP no.5 asked the complainant to send the bilty through State Bank of India, main branch, Ballia and it was also agreed that the OP no.5 would receive the bilty after making payment to the bank. Accordingly, the complainant sent two bilties of goods on 1.9.199 through RR no.704203 and 704204 respectively for Rs.45,180.00 and Rs.45,190.00. The complainant sent the bilties and their bills dated 1.9.1999 to Manager, State Bank of India through the registered post of appellant/OP no.1, the receipt numbers being 0468 and 0469. The complainant was not informed about the receiving of the bilties nor the payment through bank draft was received. When the enquires were made through registered post regarding bilties then no information was given by the appellant/OP no.1. The complainant against sent letter through Yogesh Courier Service on 2.12.1999 mentioning therein that the complainant has come to know that the goods to the 2 bilties were taken from the Railways but the OP no.1 refused to receive that even. On 24.12.1999, a reply was received by the complainant from the Zonal Office,

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Banaras of the OP no.1 but it was not disclosed as to whether the registries were received by them or not. On 19.11.1999, the OP no.1 had replied with reference to the Zonal Office, Banaras that the bills of 1.8.1999 were not received but no information regarding receiving of the bilties was given. A letter dated 19.11.1999 was posted on 30.11.1999 which shows the mala-fide of the OP no.1. As the letters dated 1.9.1999 of the registry nos.0468 and 0469 were not received back hence, it was presumed that they were received by the OP no.1 and subsequent letters sent through Yogesh Courier Service were refused by the OP no.1 which shows their bad intension. From the aforesaid, it is clear that the OP no.2, 3 & 4 have illegally usurped the goods amounting to Rs.98,370.00 of the complainant, hence a complaint was filed by the complainant in the District Forum wherein the appellant/OP no.2 submitted their WS submitting therein that 2 registries nos.0468 and 0469 dated 2.8.1999 were sent by the sender R.K. Ansari, Station Road, Shahjahanpur but no registry was done on 1.8.1999 for  State Bank of India. The complainant Mohd. Jamal who is the partner of the firm has not made any registry. The complaint in the name of Mohd. Jamal was made firstly on 2.12.1999 regarding the registry no.0468 and 0469 after 4 months which was beyond the time limit for making complaints. The registry was made by R.K. Ansari, Station Road, Shahjahanpur for State Bank of India, Ballia the address of which was incomplete and the complainant has filed this complaint for making unlawful gain. The address

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of the bank was incomplete and the complainant has refused to receive it hence, the Post Master, Ballia had sent it back on 5.8.1999 to Shahjahanpur but as the address of the sender was only R.K. Ansari, Station Road, Shahjahanpur hence, it could not be sent back to the sender as the address was incomplete and thereafter, the registered posts were sent to RLO, Lucknow which was weeded out on 8.12.1999 by RLB, Lucknow. It was possible that for avoiding sales tax, income tax etc., the registry was sent by a fictitious name and address and hence, it could not be delivered wherein there is no fault by the answering OP, hence, this complaint was liable to be dismissed. The OP no.7, the appellant in appeal no.868 of 2006 also filed their WS mentioning therein that there is no role of the OP no.7 nor any deficiency. The complainant had booked the goods for Kodarma Railway Station on 1.8.1999 and 2.8.1999, the goods were sent by 136 down train for designated place. The answering OP had written to Kodarma Railway Station but no reply was received from them. There is no negligence on the part of the answering OP. Therefore, the complaint deserves to be dismissed. After hearing the parties, the ld. Forum passed the order on 28.2.2004 as under:-

"परिवाद विपक्षी सं01 के विरूद्व खारिज किया जाता है।

 परिवाद विपक्षी सं02, 3 व 4 के विरूद्व अंशत: स्‍वीकार किया जाता है तथा परिवादी उनसे अंकन 10,000/- रू0 क्षतिपूर्ति के रूप में वसूल करने का अधिकारी है।

परिवाद विपक्षी सं06 व 7 के विरूद्व स्‍वीकार किया जाता है। परिवादी माल की कीमत अंकन 90,370/- रू0 (नब्‍बे हजार तीन सौ सत्‍तर रूपया) वसूल करने का अधिकारी होगा

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जिसपर परिवाद की तिथि 14-3-200 से भुगतान यकी तिथि तक का नौ प्रतिशत वार्षिक साधारण ब्‍याज देय होगा।  साथ परिवाद विपक्षी सं0 6 व 7 से अंकन 10,000/- रू0 क्षतिपूर्ति तथा वाद व्‍यय के रूप में वसूल करने का अधिकारी होगा।" 

Feeling aggrieved with this order that the appellant in appeal no.788 of 2004 has filed this appeal mainly on the grounds that the complaint in the office of the appellant was made by the respondent/complainant after the stipulated period as provided under rules. The complainant had not booked any bilty but one Shri R.K. Ansari had sent the bilties in question to State Bank of India, Ballia but as the branch of State Bank of India was not clearly mentioned hence, the envelops were returned back undelivered and the envelops could not be sent back to the sender Shri R.K. Ansari as his address was not properly written. The complaint could not have been filed by the complainant Mohd. Jamal but only by Shri R.K. Ansari, if there was any complaint. Since the envelops could not be returned back to the sender because of incomplete address therefore, they were sent to RLO as per rules. The articles were booked in the name of some fake firm which was not traceable. The complainant was not a consumer of the appellant, therefore, there was no question of any deficiency in service. Therefore, the impugned order passed against the appellant is illegal and therefore, is liable to be set aside.

The appeal no.868 of 2006 has been filed by the

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appellants/OP Union of India through DRM, N.R., Moradabad on the grounds that the case could not have been filed in the District Forum in view of section 13 and 15 of Railway Claims Tribunal Act, 1987. The goods were entrusted through consignment no.704203 and 704204 from Shahjahanpur Railway Station to Ballia Railway Station but the evidence submitted by the respondent clearly mentioned that the RRs were issued for parcel of  goods from Northern Railway, Shahjahanpur to Kodarma Railway Station which comes under ECR situated at Jharkhand but ld. Forum has passed the order ignoring all these facts. Even though the complainant has not mentioned any deficiency in service on the part of the railways but the ld. Forum has passed erroneous order against it which is liable to be set aside.      

Heard counsel for the parties and perused the entire records.

In this case in appeal no.788 of 2004, it is not disputed that the goods were sent by parcel through railways and the bilties were also sent through registered post. The disputed point according to the appellant Postal Department is that the bilties were sent by one R.K. Ansari and not by the complainant and therefore, the complainant is not the consumer in the instant case whereas it is the contention of the complainant that the case pertained to their firm dealing in the carpet business for being delivered to a shop in District Ballia, the respondent no.2 hence, the complainant is the owner, hence he is the consumer. Another disputed point according to the

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appellant is that the registered post was having incomplete address of the addressee therefore, it could not be delivered and that it was refused by the State Bank of India and hence, the letter was to be sent bank to the sender R.K. Ansari but even the address of the R.K. Ansari was also incomplete hence, it could not be sent to the sender R.K. Ansari and thereafter, it was sent to RLO, Lucknow where they were destroyed. On the contrary, it is the contention of the respondent/complainant that the goods pertained to his firm and were sent through Shri R.K. Ansari hence, he has cause of action against the appellants/OPs. Besides, in order to mis-appropriate the goods, the appellant/OP  surreptitiously got the RRs removed from the envelopes and got the goods released from the Railway and therefore, Postal Department and the Railways were both hand in glove to usurp the goods of the complainant and hence, had committed deficiency in service.

So now it is to be seen as to whether the complainant was a consumer of the appellants/OPs or not. If so, its effect. It is also to be seen as to whether that there was deficiency in service on the part of the appellants/OPs in the discharge of their duties of delivering the envelopes and the goods whereby the goods were illegally got released from the Railways to the detriment of the complainant. It is also to be seen as to whether, because of the allegation of involvement of fraud, the case was not maintainable in the Consumer Forum.

So we first take the point as to whether the

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complainant was a consumer or not. In this regard, it is argued by the ld. counsel for the appellants that the sender of the bilties was one Shri R.K. Ansari and not Mohd. Jamal and therefore, the complainant Mohd. Jamal was not the consumer in the instant case. On the contrary, it is argued by the ld. counsel for the respondent/complainant that the goods pertained to the complainant's firm and was merely sent through R.K. Ansari who was a person of the complainant. In this regard, it is noticeable that it is the complainant Mohd. Jamal who has been complaining about the entire episodes when the envelopes were not delivered by the appellants/OPs and it is he who has been making the complaint, so just because the sender of the articles was R.K. Ansari did not mean that the goods did not pertain to the complainant whereas the entire facts and circumstances of the case make it clear that it was the complainant Mohd. Jamal whose goods were sent through the bilties and the articles sent by his man R.K. Ansari therefore, there is substance in the reasoning that the complainant as the owner of goods, was the consumer as against the OPs. Therefore, it is concluded that the complainants was the consumer as against the appellants/ OPs.

Now we come to the main issue as to whether the appellants/OPs committed deficiency in service in not delivering the bilties and the envelops whereby they were stolen by getting the RRs out of the envelops and thereby causing loss to the complainant or not. In this regard, it is argued by the ld. counsel for the appellant Postal

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Department that the envelopes through which the RRs were alleged to have been sent were not having correct address of the addressee State Bank of India and therefore, the envelopes could not be delivered and even the officials of the State Bank of India refused to except the envelopes and therefore, they were sent bank to the sender R.K. Ansari of Shahjahanpur but even R.K. Ansari's address was incomplete hence, it could not be delivered to him. Therefore, they were sent to RLO, Lucknow where they were destroyed but it is argued by the ld. counsel for the respondent/complainant that firstly the address of the State Bank was clearly written as the Head Office of the State Bank of India at Ballia. So there was no question of any incomplete address as the Head Office is only one in a District and so it is wrong to state that the address was incomplete. Besides, it is argued that the envelopes were not received by the addressee then they should have been sent back to R.K. Ansari and even if the address of R.K. Ansari was not correctly written then too before destroying the letters at RLO, Lucknow the complainant should have given a chance of hearing as he had already made complaints about the letters not being delivered to the addressee and it is specifically mentioned that the letters were sent on 17.9.1999 and 7.10.1999 with regard to non-payment by the Bank pertaining to the goods sent by the complainant but the Postal Department refused to receive them. It is also argued by the ld. counsel for the respondent/complainant that the complainant Mohd. Jamal had sent another letter through Yogesh Courier Service on

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2.12.1999 but the same was also got refused by the appellant/OP no.1 whereas the envelopes are said to have been destroyed on 8.12.1999 in the office of RLO.

Now in view of the contention of the complainant that he had sent letters complaining about the bilties got released surreptitiously and the goods not reaching to the destination and the appellants not being paid by the Bank and the complainant's complaints not attended by the OPs before the letters containing RRs were destroyed by the Postal Department certainly shows some mala-fide on the part of the Postal Department in dealing with the delivery of the envelopes sent through registered post and this becomes very important, as through RRs kept in the envelops, articles were got released from the Railways. In this regard, the role of the Railways was also dubious as the goods were supposed to have been booked from Shahjahanpur to Ballia but as per the reply of the appellant/OP no.7 they were sent to Kodarma Railways Station on 2.8.1999 by 136 down train which was received at the Railway Station, Kodarma.

We take up the point as to whether there was involvement of element of fraud and hence, the case was not maintainable in the Forum below.

It is argued by the ld. counsel for the appellants that the complainant has alleged that the goods sent through Railway, were got released through bilties. The mala-fide intention of the appellants/OPs was mentioned in the complaint in not replying to the letters. It is argued by the ld. counsel for the respondent/complainant that he had sent

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the bilties through registered post to the Bank and as the same were not received back hence, he presumed that the same were received by the State Bank of India/OP no.1. He had made allegations that the refusal by the OP no.1 was indicative of their mala-fide. It is also alleged by the respondent/complainant that on 2.12.1999, the photocopies of the receipts of the registered post no.0468 and 0469 dated 1.9.1999 got received by the Post Master, Up Dakghar, Bahadurganj, Shahjahanpur on 2.12.1999 and reminders were sent on 6.1.2000 to the Post Master General, Bareilly Zone and the Pose Master General, Lucknow vide registered post no.0388, 0389 on 6.1.2000 but the same were not returned by them. Therefore, there is clear cut mala-fide on the part of the appellants as the goods were stolen and despite the complainant sending the letters and reminders, no action taken by the appellants and therefore, it was a case of mala-fide intention whereby fraudulently the goods were got released by connivance  of the Postal Department and the officials of the Railway Department, the appellant/OP no.6 & 7. It is interesting to note that no allegations were made by the respondent/ complainant against the appellants/OP no.6 & 7 who where infact firstly not added as parties and were subsequently added as parties. It is also interesting to note that there is no allegation against the railways in the amended complaint wherefrom it could be discerned that the appellant/OP no.6 & 7 had committed any deficiency in service so when there was no allegation against the appellants/OP no.6 & 7 then finding them guilty of

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deficiency in service, by the Forum below is not understandable, hence incorrect. In fact, the arguments advanced by the ld. counsel for the appellant/OP no.6 & 7 that the ld. Forum has passed the orders against the appellants/OP no.6 & 7 on the basis of conjectures and surmises is a valid one. In this regard, it is pertinent to mention that the complainant has contended that the goods were sent from Shahjahanpur to Ballia but interestingly, the goods appear to have been sent from Shahjahanpur to Kodarma which is not a Railway Station of Ballia. In this regard, the ld. Forum below recorded findings that the goods were sent from Shahjahanpur to Kodarma as per the written statement of OP no.7 but it is not proved that Kodarma Railway Station received the goods. It has also been noted in the judgment that the notice was issued to the Railway Station, Ballia who has given the answer that the goods were not received in Ballia but the point is as to why an answer is required from the railway station Ballia when obviously the goods were not sent to Ballia but to Kodarma only as from the copies of the  receipts, it is evident that the goods sent were from Shahjahanpur to Kodarma. Another important feature is that the OP no.7 has categorically stated in his WS that the goods were sent by 136 down train on 2.8.1999 to Kodarma which were received by the Parcel Office of the Kodarma. In this regard, another important feature is that no notice to the OP no.6 appears to have been sent as nowhere it is recorded that notice was sent to OP no.6 by the Forum. The only thing i.e. recorded is that the OP no.6 did not file

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any reply. Now the question of filing reply arises only when the notice is sent to the OP no.6 but that does not appear to be the case. Besides, there is no explanation coming from the side of the complainant as to why the goods are alleged to have been sent from Shahjahanpur to Ballia when actually they were not sent to Ballia but to Kodarma. In fact, it is also not clear either from the allegations made by the complainant or from any other statement of any party as to wherefrom the goods were fraudulently got released.  The ld. Forum has with the flight of imagination shown the connivance of the Railway authorities with the officials of the Postal Department, when in fact, there is no such allegation in this regard made by the complainant what to talk of proving that but the ld. Forum has also concluded that the Postal Department has committed fraud and willful negligence and therefore, they were liable for deficiency in service. It is argued by the ld. counsel for the respondent/ complainant that the officials of the Postal Department managed to get the envelopes carrying bilties of the goods sent through the railways returned by the Bank and thereafter instead of sending then back to the sender, they got it sent to the RLO, Lucknow on the wrong basis of not having the complete address of the sender and got the envelops destroyed which were containing the bilties even though the complainant has made complaints about the release of goods without any payment to the Bank as per the agreement entered into by the complainant that the OP no.5 to whom the goods were sold out. It is also argued by

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the ld. counsel for the respondent that even when a complaint was made by the complainant to the appellants/ OPs about the goods having been released surreptitiously through the bilties sent through the envelopes the appellants/OPs did not taken any action and instead destroyed the envelopes and therefore, there is clear cut mala-fide on the part of the postal department and deficiency in service. In this regard, however, it is argued by the ld. counsel for the appellants that firstly the letter was not correctly addressed to the State Bank of India hence, the envelopes were not received by the Bank and hence, the envelopes were sent to the sender R.K. Ansari but as his address was also not correctly mentioned hence, it was sent to RLO, Lucknow where it was destroyed on 8.12.1999. With regard to the allegation of the complainant that even though he had made a complaint but still instead of entertaining this complaint the letters were destroyed. It is argued by the ld. counsel for the appellants that no letter was sent by the complainant Mohd. Jamal hence, there was no question of entertaining the complaint as the complaint should have been made by the sender R.K. Ansari. There is semblance of reasoning in the arguments advanced by the ld. counsel for the appellants as obviously R.K. Ansari was the sender of the envelopes and it is interesting to note that his address as sender was given as R.K. Ansari, Station Road, Shahjahanpur which obviously was incomplete and thereafter, there was no question of tracing out the sender and hence, it was returned to the RLO, Lucknow. It

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appears to be a mystery as to how the bilties were removed from the envelopes and the goods were got released form the railways which appears to be a case of serious fraud, a case which could not be dealt with in the Forum below as so many things are to be straightened out as to how the envelopes were sent wrongly addressed by the sender and as to how they were got returned and how the bilties were removed from the envelopes and the goods were got released and why the goods are alleged to have been sent from Shahjahanpur to Ballia but infact sent to Kodarma and also the existence of OP no.5 to whom, the goods were sold when according to the appellants there was no existence of OP no.5 in Ballia as argued by the ld. counsel for the appellants. In this regard, it is also to be noted that the ld. Forum has recorded a finding that there is no such firm as OP no.5 in Ballia and hence, it was not correct to pass any order against the OP no.5, a forged firm. It is also noticeable in this regard that the Forum has recorded that no objection has been filed by the OP no.5 but it is not recorded as to whether any notice was sent to the OP no.5 and if sent what was the reply of the Postal Department. We fail to understand as to when the Forum below finds that the OP no.5 to be a forged firm then how come the case of the complainant could be believed that that he had sold the goods to the OP no.5 whereas the entire transaction was directed towards that end. All this appears to be very doubtful and fishy and therefore, it appears to be not only a very complicated matter but also as discussed above, a fraudulent case of getting the goods

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released through RRs in a surreptitious manner. Obviously, such a case could not be dealt with through  the summary proceedings in the Consumer Forum and therefore, the complaint was not maintainable in the Forum and therefore, the impugned order deserves to be set aside and the appeal allowed and complaint dismissed.  

ORDER

          Both the appeals are allowed and the impugned judgment and order dated 28.2.2004 passed in complaint case no. 109 of 2000 is set aside and the complaint dismissed.

No order as to costs. Certified copy of the judgment be provided to the parties in accordance with rules. Let a copy of this judgment be placed on the records of the Appeal no.868 of 2004. The respondent/complainant is free to file a case in the appropriate court. 

         (Vijai Varma)                          (Sanjai Kumar)

    Presiding Member                             Member

Jafri PA-II

Court No.3