D.o.F:30/4/08 D.o.O:26/11/08 IN THE CONSUMER DISPUTES REDRESSAL FORUM KASARAGOD CC.NO.53/2008 Dated this, the 26th day of November 2008 PRESENT: SRI.K.T.SIDHIQ : PRESIDENT SMT.P.RAMADEVI : MEMBER SMT.P.P.SYAMALADEVI : MEMBER Gopalakrishna .M.S, S/o Sankara Maniyani, R/at Chokkambatty House, : Complainant Minchipadav, Kuntar Po, Mulleriya,Kasaragod. 1. The Post Man, Kuntar Post Office, Mulleria. 2. The Superintendent of Posts, : Opposite parties Kasaragod Head Post Office. ORDER SRI.K.T.SIDHIQ : PRESIDENT: Complainant, Gopalakrishna.M.S, S/o Sankara Maniyani, Chokkambathy House, Minchipadav, Kuntar PO, filed this complaint alleging deficiency in service on the part of opposite parties against non-delivery of two registered letters addressed to him. According to Gopalakrishna, he surrendered his BSNL post paid Mobile connection in 2006. But he had not received the security deposit of Rs.2000/- till 30/6/07. On enquiry with BSNL authorities, he came to know that a cheque for Rs.1879/- dtd.10/1/07 was issued to him through registered post. But he has not received it. On enquiry made by the complainant with Kuntar Post Master and opposite party No.1 they told that no such registered letter is received by them. Again he contacted BSNL authorities and with the details of registered letter, he again made enquiry with opposite party No.1 and postmaster of Kuntar post office, they were angry with him. On 24/9/07 one person from postal department came to the place of designation of the complainant at Kasaragod and served the registered cover posted by BSNL contains a cheque for Rs.1879/-. It received 8 months after the date of posting. He has not received any intimation from Kuntar post office regarding the said registered cover. The seal of Kuntar post office is seen in printed with date 30/1/07. As the cheque was time barred, he sent a registered lawyer notice to opposite party NO.2 on 26/9/07, to which he received an evasive reply, in that it was contended by 2nd opposite party that complainant is not residing in the address shown in the letter. But according to complainant, he is residing in the same address and OP.NO.1 is residing just 500 meters away from his home. Prior to the receipt of the said postal article on enquiry made with the BSNL authorities regarding the non-receipt of the cheque, they sent another registered cover with a fresh cheque on 31/8/07 vide No.RL 5432 of Civil Station PO, Kannur. The said registered letter also not received by him. Hence, alleging deficiency in service on the part of opposite parties this complaint is filed. 2. Opposite parties defend the claim of the complaint on many grounds. According to opposite parties, complainant is not a consumer and the dispute mentioned is not a consumer dispute since complainant has not availed any service from opposite parties and he has no locus standi to file the case. On merits opposite parties admits that the registered letter favouring the complainant was booked at Kannur on 27/1/07 and it received at Kuntar Post office on 30/1/07 and delivered to a wrong person M.Gopalakrishna. On receipt of lawyer notice on 26/9/07 issued on behalf of the complainant , enquiries made at Kuntar post office and it was recovered from the wrong recipient and redelivered to complainant at ICICI Bank Kasaragod on 24/9/07, since the complainant was not available in the given address at Kuntar(po). The second registered letter No.5432 booked at Civil Station Po,Kannur on 31/8/07 received at Kuntar branch post office on 1/9/07 and intimation regarding arrival of the registered letter was served on 3/9/07, since the addressee/ complainant has not claimed the article it was returned to sender on 13/9/07. Another technical defense advanced by the opposite parties is that they are protected under section 6 of the Indian Post office Act 1898, 3. Complainant filed affidavit and Exts.A1 to A11 marked on his side. For opposite parties Exts.B1 to B5 marked. Both sides filed notes of argument and the documents perused carefully. 4. The points to be considered are:- 1. Whether the complaint is a consumer? 2. Whether the complaint is maintainable in view of Sec.6 of the IPO Act 1898? 3. Is there any deficiency in service on the part of opposite parties ? 4. Relief as to order and costs. 5. Point No.1: The contention of the opposite parties that the complainant has not availed any service for consideration and he is not a consumer since he is only a recipient with respect to the registered letter sent by BSNL authorities is not legally maintainable. The service availed by the BSNL authorities will be completed only at the time of delivery of the postal article to the addressee in the correct destination within a reasonable time. Since the complainant was recipient of the letter he became the beneficiary of the service as envisaged under section 2 1(d) of the Consumer Protection Act and there fore he is a consumer. This point is answered accordingly. 6. Point Nos. 2&3; Sec.6 of the Indian Post Office Act 1898 did not immune opposite parties from the liability to pay compensation on this case. It provides that ,the officer of the post office shall not incur any liabilities by reason of any such loss, misdelivery, delay or damage unless he has caused the same fraudulently or by his willful act or default. So if the loss or misdelivery is caused due to the willful act of default of an officer then the immunity under section 6 of IPO is no more available. 7. According to opposite parties, the registered letter No.5823 booked at Kannur on 27/1/07 was delivered to a wrong person and it was returned from him and delivered to the complainant on receiving Ext.B3 lawyer notice. In Ext.A5 reply to Ext.A3 opposite party further justified the non delivery of the letter stating that the addressee Gopalakrishna.M.S was not available in the given address for one year and he has not left any instructions with Kuntar post office for redirection of his letter. However, such a defense is not seen taken in the version. 8. According to opposite parties, the intimation regarding the registered letter No.5432 dtd. 31/8/07 was received by them on 3/9/07 since it is unclaimed it was returned to sender on 13/9/07. So according to opposite parties, there were no confusion regarding the identity of the complainant with respect to the letter registered on 31/8/07. It is to be remembered that the said letter is reached the Kuntar post office on 1/9/07 prior to Ext.A3 lawyer notice dtd.24/9/07 regarding the non delivery of the letter registered on 27/1/07. If that be so how the letter registered on 27/1/07 in the same address that of the subsequent registered letter dtd.27/8/07 is delivered to a wrong person is quite an anomaly . The contention that intimation with respect to the letter registered on 31/8/07 is given to the complainant is also not proved by producing supporting documents like proof of delivery of intimation etc. The probabilities of the case leads to an irresistible conclusion that with respect to the letter registered on 31/8/07 also intimation might have delivered to wrong persons. 9. The non delivery or misdelivery of a registered letter can be considered as an accidental one , if proper and usual procedures are followed to deliver it. Therefore, opposite parties can claim immunity U/S 6 of Indian Post Office Act. But when it repeats, then definitely the immunity provided by the statute has to be stripped off as it is happened in this case. That apart regarding the shelter being taken under Sec.6 of the Act, we are of the view that this is an archaic law enacted by the Britishers with a view to ensure that because of their acts or misfeasance and malfeasance like non delivery, wrong delivery, delay, damage etc they are not held responsible. In our opinion, all laws are and have to be subordinate to the Constitution of India which was promulgated in the year 1950 when the provisions of the Sec.6 of the Indian Post Office Act 1898 are examined on the touch stone of Article 14 of the Constitution . In the peculiar fact of this case, we have no doubt in crossing to the conclusion that this provision is being used, abused as well as misused by the opposite parties 10. In this case, Protection, if any, under section 6 of IPO Act and for that matter under all other laws would attract reasonable fair, bonafide and genuine acts of the opposite parties and their staff. But it cannot be allowed to be invoked in the case of gross negligence as is the situation in this matter. To cover up the negligence, the opposite parties were went in search of other Gopalakrishna residing in the area of Kuntar post office and produced documents Exts.B3 to B5. But the other Gopalakrishna doesn’t have the very same address of complainant. Ext.B1 proves that the letter registered dtd.31/8/07 addressing the complainant has been returned to the sender. But that doesn’t mean that the intimation with respect to the same has been served on the complainant, particularly when there were no complaint received at that time regarding the non delivery of the letter registered on 30/1/07. Moreover, even as per Ext.A5 dtd.18/1/07 opposite parties have taken a contention that the complainant was not available in the address shown in the letter for the previous one year and at the same time according to them intimation regarding the letter registered on 31/8/07 has been correctly served upon him. All these aspect makes it clear that the opposite parties had committed deficiency in service rendered to the complainant as a beneficiary of the service availed by BSNL Kannur. Therefore, certainly they are liable to compensate the complainant. Hence, Point Nos.2&3 are found against the opposite parties. 11. Reliefs and costs: Due to the nondelivery of registered letters No.5823 dtd. 30/1/07 and No.5432 dtd.31/8/07, complainant did not get back the advance amount of Rs.1879/- deposited with BSNL . Opposite parties have no case that the complainant has received the said amount at a later stage. Definitely opposite parties are liable to pay this amount to the complainant. In addition to this, opposite parties are also liable to pay compensation for the mental agony suffered by him. As held by the Hon’ble Apex Court in the case of Ghaziabad Development Authority Vs. Balbir singh reported in (2004)5 SCC 65 the compensation has to be awarded not only to recompense the consumer but it is also intended for a qualitative change in the minds of the wrong doer/ service provider. Therefore, we allow the complaint and the opposite parties are directed to pay a sum of Rs.1879/- being the amount lost to Gopalakrishna due to the non receipt of registered letters sent by BSNL Kannur along with compensation of Rs.2000/- and a cost of Rs.2000/-. Time for compliance is one month from the date of receipt of copy of order. Sd/ Sd/ Sd/ MEMBER MEMBER PRESIDENTExts: A1-18/7/07-letter from BSNL A2 & A2 series-Regd.letter from BSNL with cheques & cover A3-26/9/07- lawyer notice A4-postal acknowledgment A5-Reply of A3 A6-6/10/07- letter from BSNL A7-30/10/07-lawyer notice A8-postal acknowledgment A9-20/11/07-reply of A7 A10-30/11/07- letter from Post Master General,Tvm. A11-29/2/08-Reply of Ext.A7 issued by Post master General,Calicut. B1&B2- proof of acknowledgments B3& B4-Copy of ration card B5- statement of M.Gopalakrishna Sd/ Sd/ Sd/ MEMBER MEMBER PRESIDENT eva/ /Forwarded by Order/ Senior Superintendent
......................K.T.Sidhiq
......................P.P.Shymaladevi
......................P.Ramadevi | | 
