BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 458/1999 Filed on 22.09.1999

Dated : 30.04.2009

Complainant:

K. Ravikumar, Edayilvilakathu House, Puravoorkonam, Nedumparambu P.O, Alamcode – 695 012.

(By adv. S. Reghukumar)

Opposite parties:

1. Muraleedharan, Post master, Alamcode Post Office, Thiruvananthapuram District.

   (By adv. M.P. Sasidharan Nair)

2. C. Anandan, Telegraph Messenger, Alamcode Post Office, Thiruvananthapuram District.

   (By adv. K.P.Renadive)

3. The Department of Posts, represented by its Chief Post Master General, Thiruvananthapuram.

4. The Department of Telephones, represented by its Chief General Manager, Thiruvananthapuram.

(By adv. K.J. Thresia)

This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. This complaint remanded as per order dated 26.12.2005 in Appeal 1186/01 of the Hon’ble State Commission. Though the case was taken up for orders by the predecessors of this Forum on 30.03.2006, the order was not prepared accordingly. This Forum assumed office on 08.02.2008 and re-heard the complaint. This O.P having been heard on 16.03.2009, the Forum on 30.04.2009 delivered the following:

ORDER

SRI. G. SIVAPRASAD: PRESIDENT

The facts leading to the filing of the complaint are that complainant in response to a newspaper advertisement applied for the post of Manager in South Indian Federation of Fishermen Societies, that the said society sent a telegram to the complainant directing him to appear for an interview on 08.05.1999 at its office at Karamana, that the said telegram was not delivered to the complainant, that on expectation of interview order, petitioner contacted the society on 17.05.1999 and came to know that a telegram was already sent to him from the society on 05.05.1999, that thereupon the complainant on 17.05.1999 itself enquired the matter with the Alamcode post office and complainant was informed in the first instance that no such telegram was received in that post office, and that when the petitioner insisted on verifying the register he was told that such a telegram was received by them and they handed over the same on 17.05.1999. The failure of opposite parties in delivering the said telegram in time resulted in forfeiting the chance of getting a good job commensurating with the qualifications of the complainant and that such a failure amounts to negligence, wilful default, deficiency in service and unfair trade practice on the part of opposite parties. Hence this complaint to direct the opposite parties to pay compensation of Rs. 2 lakhs for their failure to deliver the telegram in time and the resultant forfeiture of job to the petitioner and Rs. 50,000/- for mental agony suffered by the complainant.

Opposite parties entered appearance and filed version contending that the complaint is not maintainable before this Forum and that this is not a consumer dispute. Opposite parties further submitted that Sec. 6 of the Indian Post office Act and Sec. 9 of the Indian Telegraph Act confer absolute immunity on the Government against any loss or damage arising for the non-transmission or delivery of a telegraphic message. Hence they prayed for the dismissal of the complaint.

The points that arise for consideration are:-

1. Whether the complainant is a consumer as envisaged in Consumer Protection Act?

2. Whether there is negligence, wilful default and deficiency in service on the part of opposite parties?

3. Whether the complainant is entitled to get compensation? If so at what amount?

4. Whether the complainant is entitled to get cost? If so, at what amount?

    

In support of the complaint, complainant has filed affidavit and Exts. P1 to P7 were marked. 1^st and 2^nd opposite parties have been examined in chief and cross examined by the complainant and Exts. D1 to D9 were marked.

Points (i) & (ii):- It has been the case of the complainant that in response to a newspaper advertisement, complainant applied for the post of Manager(Technical) in South Indian Federation of Fishermen Societies, that the society sent a telegram to the petitioner directing him to appear for an interview on 08.05.1999 at its office at Karamana, that the said telegram was not delivered to the petitioner and that on expectation of interview call, the petitioner contacted the said society on 17.05.1999, and came to know that the telegram was already sent to him from the society on 05.05.1999. Thereupon the complainant on 17.05.1999 itself enquired the matter with the Alamcode Post office which has to deliver the telegram, and he was informed in the first instance that no such telegram was received in that post office. When the petitioner insisted on verifying the register, he was told that such a telegram was received by them and they handed over the same on 17.05.1999. The endorsement regarding the receipt of telegram on 17.05.1999 was made in the register maintained in the Alamcode post office. It has also been the case of the complainant that when he approached the society on 18.05.1999 with the telegram and explained that he could not appear for the interview for no fault of his but because of the non-delivery of the same from the post office in time, the society refused to consider his case since he could not turn up the fixed time and date. Complainant submits that the failure of the 1^st and 2^nd opposite parties in delivering the telegram in time resulted in forfeiting the chance of getting a good job commensurating with the qualifications of the petitioner. Ext. P1 is the original letter dated 22.06.1999 issued by South Indian Federation of Fishermen Societies. In Ext. P1 a letter dated 18.05.1999 SIF/A/40/16848 is referred. Ext. P2 is the original of the telegram, sent by the said society to the complainant directing him to appear for an interview on 08.05.1999 at its office at Karamana. The address stated in Ext. P2 telegram is Ravikumar. K, Edayilvilakathu House, Puravoorkonam, Nedumparambu. The same address is stated in the complaint also. Ext. P3 is the communication dated 18.05.1999 from the said society to the complainant. As per Ext. P3, the said society refused to consider complainant’s case since he could not turn up at the fixed time and date. Ext. P4 is the Malayala Manorama daily dated 19.05.1999, which discloses a news item on the failure of the postal authorities in delivering the telegram in time and consequent forfeiture of job to complainant. Ext. P5 is the copy of the complaint dated 18.05.1999 filed by the complainant before the Customer Care Centre, requesting to take suitable action against a person who committed wilful default and gross negligence in delivering the telegram in time. Ext. P6 is the reply sent by the Manager, Customer Care Centre, Department of Post to the complainant informing him that necessary enquiries are being made in this case and suitable action will be taken against the official at fault. Opposite parties resisted the complaint by submitting that complainant is not a consumer since the said telegram was sent by one P.M. Delbert on payment of fee. Opposite parties further submit that Sec. 6 of Indian Post Office Act and Sec. 9 of Indian Telegraph Act confer absolute immunity on the government against any loss or damage arising for the non-transmission or delivery of telegraphic message. Regarding the first point under consideration, complainant submits that he is a beneficiary of the services hired by South Indian Federation of Fishermen Society who had despatched the telegram to the complainant after paying necessary charge. It is submitted by the complainant that the said telegram was meant for the complainant and the charge was levied is admitted by the opposite parties. It is pertinent to note that even though no direct service was availed by the complainant from the postal department on payment of consideration, the said telegram was sent by the said society with bonafide intention to reach it to the addressee prior to the date of interview. Further the cause of sending the said telegram is the search for employment by the complainant. Since it is the complainant’s application for employment upon which such telegram was sent it is the complainant who is the real beneficiary of such telegram service and not by the sender of telegram. As the sole beneficiary of such service and as an affected party due to the deficiency in the service of opposite parties, we find complainant is a consumer as envisaged in the Consumer Protection Act. Main thrust of argument advanced by the counsel appearing on behalf of the complainant was to the effect that 1^st opposite party was impleaded in the complaint in his personal capacity and that the specific allegation of wilful default and negligence is attributed against 1^st opposite party Muraleedharan, Post Master, Alamcode Post Office. Complainant submits Mr. Muraleedharan has not filed any written version to the complainant and hence has admitted the allegation in the complaint. Version for opposite parties 1 and 3 is seen filed but signed by one Sivadasan, Senior Superintendent of Post Offices, Trivandrum North Division only. 1^st opposite party has not signed the said version, even though he was impleaded in the complaint in his personal capacity. In the absence of any written version on the part of 1^st opposite party, the allegation levelled against the 1^st opposite party remains unchallenged. The evidence is tendered to prove what is pleaded in the written version by the party who files the same. In this case 1^st opposite party has not filed any written version and hence the evidence tendered by the 1^st opposite party is liable to be discarded. 2^nd opposite party Anandan has filed separate version and adduced evidence. In his chief examination, he has deposed that he is an extra departmental staff and his duty time is from 8.30 a.m to 11 a.m and from 2 p.m to 4.30 p.m, that on 07.05.1999 at 4.15 p.m he was entrusted to deliver 8 telegrams out of which 7 telegrams were delivered and complainant’s telegram could not serve on that day which was due to unfamiliar address and late time, that on 08.05.1999, complainant’s address was identified and served the telegram to the complainant and after reading the telegram complainant returned it to him stating that it was too late to receive and that after endorsing ’unclaimed’, the telegram was returned to the post office. It is further submitted by the 2^nd opposite party that complainant received the said telegram from the post office after 3 days from the date of unclaim. Ext. D1 is the local number slip of Alamcode Post office. As per Ext. D1 on 07.05.1999 there were 8 telegrams for delivery. Ext. D2 is the delivery slip dated 07.05.1999 wherein, against C6, the word ’refusal’ is seen struck off and thereafter the word ’enquiry’ is seen written. 2^nd opposite party admitted the same. Ext. D3 is the delivery slip dated 08.05.1999, wherein against C6/7-5, it is seen written in Malayalam that “സമയം താമസിച്ചതു കൊണ്ട് കൈപ്പററുന്നില്ല എന്നു പറഞ്ഞു”. Ext. D4 is the delivery slip dated 17.05.1999, wherein it is recorded ’delivery at window’. Ext. D7 is the letter issued by the Sub Divisional Engineer, Central Telegram Office to SSTT, Thiruvananthapuram. As per Ext. D7, the message was booked on 05.05.1999 and transmitted to Attingal on the same day at 16.40 hrs, without any avoidable delay. It is further stated in Ext. D7 that the name of the post office Alamcode was not given in the address and that may be the reason for delay in delivery of the message. 2^nd opposite party, in his cross examination, admitted that he was reinstated in his service. In his re-examination he has deposed that he will furnish the order revoking his suspension before the Forum. 2^nd opposite party did not furnish the same. It is pertinent to point out that nowhere is it stated in Exts. D2 to D4 that the reason for delay is non-mention of the name of the post office, Alamcode. Whereas in Ext. P7 it is stated reason for delay is non-mention of the name of the post office, Alamcode. Even opposite parties have never pleaded the same reason in their version nor have they deposed the same in chief examination. As per Ext. P6 letter from Customer Care Centre, it is informed the complainant that ’necessary enquiries were made in the alleged delay in delivering of call telegram and suitable action is being taken against the official at fault. It is to be noted that complainant has sought for the production of the file relating the enquiry conducted against opposite parties 1 & 2 pursuant to the complaint filed by the complainant. The document was sought to be produced by the 3^rd opposite party. 3^rd opposite party did not furnish the said document nor did 3^rd opposite party file affidavit. Further in para 5 of the version filed by 3^rd opposite party it is stated that “a letter of complaint was received by Manager, Customer Care Centre, General Post Office, Thiruvananthapuram on 18.05.1999 from the complainant regarding the delay in delivery of telegram. Immediate enquiry was conducted and took disciplinary action against the 2^nd opposite party as he failed to deliver the telegram on 07.05.1999. A reply to that effect was given to the complainant vide letter No. C.R 11/193/99 dated 04.06.1999 by the Manager, Customer Care Centre, Thiruvananthapuram. (A photocopy of letter No. CPT/PC/7/99 dated 29.06.1999 from the O/o Chief Post Master General, Kerala Circle, Thiruvananthapuram giving direction to the Senior Superintendent of Post Offices to place the ED official under put off duty (suspension) was produced and marked as Ext. D6. Submission by the complainant is that it is the said enquiry file was sought to be produced and the said enquiry file was not produced as it will establish the opposite parties 1 & 2 are guilty of wilful misconduct and negligence. It is pertinent to note that a party in possession of best evidence which would throw light on the issue in controversy is withholding it. Hence we ought to draw an adverse inference against him notwithstanding that onus of proof does not lie on him. Herein the allegation levelled against opposite parties 1 & 2 is wilful default and vicarious liability on opposite parties 3 & 4. On perusal of Exts. D1 to D4, it is to be highlighted that Ext. D4 is a proper telegram delivery slip with specific column (column No. 5) for recording reasons for non-delivery, whereas Exts. D2 and D3 are slips for delivery of money orders. The columns printed in Ext. D2 and D3 are meant for delivery of money order, and entry made in Ext. D2 against C6 is ’refused’ which is thereafter seen struck off and incorporated the entry ’enquiry’, which clearly establishes a calculated manipulation. In Ext. D3 also there is the entry “സമയം താമസിച്ചതു കൊണ്ട് കൈപ്പററുന്നില്ല എന്നു പറഞ്ഞു”(that is refused). While in the version it is treated as unclaimed. In his cross examination 2^nd opposite party has deposed that “unclaimed”എന്നു പറഞ്ഞാല്‍ intimation കൊടുത്തശേഷം claim ചെയ്യാത്തത്, ’refused’ എന്നു പറഞ്ഞാല്‍ നിരസിച്ചു എന്നാണ്.” It is pertinent to note that the case of the complainant is that the telegram was never taken to him, instead he went to the post office to collect the telegram on 17.05.2009 which is evident from Ext. D4. Further, the case put forth by the opposite parties 1 to 3 is that they received the telegram only on 07.05.1999 at 16 hrs whereas the case put forth by the 4^th opposite party is that they received the telegram on 05.05.1999 at 16.15 hrs and transmitted the same to the office of Alamcode post office on 06.05.1999 at 16.15 hours. In view of the foregoing discussions it is evident that opposite parties 1 & 2 withheld telegram despite the receipt of it on 06.05.1999. The telegram was never taken to the complainant at any point of time. This establishes a clear case of wilful default on the part of opposite parties 1 & 2. Opposite parties claim immunity under Sec. 6 of Indian Post office Act. In this case wilful default is on the part of opposite parties 1 & 2, who are the employees of the 3^rd opposite party. Sec. 6 of the Indian Post office Act reads as under:

Sec. 6:- “Exemption from liability for loss, misdelivery, delay or damage, the Govt. shall not incur any liability by the reason of the loss, misdelivery or delay 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 fraudulent or by his wilful act of default”. We have already found that wilfully the telegram was not delivered to the complainant by opposite parties 1 & 2. It was a deliberate and intentional negligence on the part of opposite parties 1 & 2. Regarding Sec. 6 of the Act, complainant quoted the judgement of the Hon’ble High Court of Kerala in the case of P&T Vs. Sarada reported in 2001(3) KLT 809, wherein it has held that the loss contemplated in Sec. 6 is a loss to government and not loss to owner of postal article. Government is liable to compensate for the loss sustained to the owner as a result of the wilful act committed by the employee. In this case opposite parties 1 & 2 have committed wilful default and 3^rd opposite party being their employer is vicariously liable to pay damages. The complainant deserves to be compensated for the negligence and wilful default on the part of opposite parties 1 to 3. The complainant has claimed Rs. 2,00,000/- as compensation, with interest thereon at the rate of 12% per annum from 08.05.1999 (the date of interview) till realisation for the failure to deliver the telegram in time, and the resultant forfeiture of job to the complainant along with Rs. 50,000/- as compensation for the mental agony. Taking into consideration of the totality of circumstances we are of the view that, it will be expedient and justice will be well met if the complainant is awarded a compensation of Rs. 25,000/- against all his claims.

In the result, complaint is allowed. Opposite parties 1 to 3 shall jointly and severally pay a sum of Rs. 25,000/- to the complainant along with a cost of Rs. 2,000/-. The said amounts shall carry interest at the rate of 12% if not paid within two months from the date of receipt of this order.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the day of 30^th April 2009.

G. SIVAPRASAD,

President.

BEENAKUMARI. A : MEMBER

S.K. SREELA : MEMBER

O.P. No. 458/1999

APPENDIX

I COMPLAINANT’S WITNESS :

PW1 - Ravi Kumar. K

II COMPLAINANT’S DOCUMENTS :

P1 - Original letter dated 22.06.1999 from the

Manager(Personnel) South India Federation of Fishermen

Societies, Karamana.

P2 - Original telegram message dated 05.05.1999 sent to the

complainant.

P3 - Original letter dated 18.05.1999 addressed to the

complainant.

P4 - Malayala Manorama daily newspaper dated 19.05.1999.

P5 - Copy of complaint dated 18.05.1999 sent by the

complainant to the Manager, Customer Care Centre,

GPO,Tvpm.

P6 - Letter dated 04.06.1999 from the Manager, Customer Care,

to the complainant.

III OPPOSITE PARTY’S WITNESS :

DW1 - Muraleedharan

DW2 - Anandan

IV OPPOSITE PARTY’S DOCUMENTS :

D1 - Local Number slip dated 07.08.1999 and 08.05.1999

D2 - Telegram delivery slip dated 07.05.1999.

D3 - Telegram delivery slip dated 08.05.1999.

D4 - Telegram delivery slip dated 17.05.1999.

D5 - Phonogram message dated 05/05

D6 - Telegram message dated 05/05

D7 - Lr. Dated 09.07.1999 issued by Sub Divisional Engineer, Central Telegraph Office, Tvpm.

D8 - Letter dated 04.06.1999 issued by Manager, Customer Care Centre, Tvpm.

D9 - Letter dated 09.07.1999 issued by Sr. Superintendent, Telegraph Traffic.

PRESIDENT