O R D E R

Sri. Santhosh Kesavanath P., President:

Case of the petitioner's is as follows:

Petitioner was an employer of BOBS Restaurant and Bar at Cowa Beach, Goa. Opposite party is Postal Department conducting the speed post all over India including Kottayam. Petitioner states that the mother of the petitioner died on 25..12..2006, while the petitioner was working at Goa, and the petitioner attended the funeral of the mother. The mother was residing with the elder brother at Iringalakuda, Thrissur District, Kerala. The 41^st day ceremony of the mother was fixed on 4..2..2007. Since the petitioner cannot attend the function he decided to send some money in favour of his brother as his share for the Funeral expenses incured. He also believed that it will help his brother. More over the money was sent as a question of mental attachment with his mother. On 25..1..2007 petitioner sent a demand draft dtd: 29..1..2007 of Rs. 1000/-, to his

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brother along with the covering letter by EMS speed post conducted by the opposite party on 25..1..2007 with consignment No. 1618. According to the petitioner the consignmenthas not reached the addressee even now. Petitioner made enquiry through the branch office of the opposite party at Kottayam but they were not able to trace out the consignment. So, petitioner sent a complaint to the opposite party on 5..2..2007. Since no reply was received petitioner issued a notice on 15..3..2007 to the branch office from where the consignment has been sent but there was no reply. So, on 3..4..2007 another notice was issued which was also unheeded by the opposite party. So, another letter was

sent to the Trivandrum office of the opposite party on 29..5..2007 for which the reply from the RMS VM division, Mirag dtd: 6..6..2007 was received to the petitioner asking him to cancel the said D.D and to submit claim form for exgratia , compensation. Since compensation amount was not specifide and petitioner was not ready to receive the exgratia amount he issued a reply to it. The petitioner also issued a letter dtd: 19..6..2007 to S.B.I to sent a copy of the D.D for canceling the same. But there was neither any action nor any reply from either parties. So, petitioner states that due to the deficiency in service of the opposite party he suffered much mental pain and sufferings and huge financial loss . So, he claims for a compensation of Rs. 50,000/- for the loss and sufferings and also he prays for an amount of Rs. 1200/- as loss injured to him. He also claims cost of Rs. 1000/- from the opposite party.

Opposite party entered appearance and filed version in the form of an affidavit contenting that the petition is not maintainable before the Forum. They contented that the speed post article was booked at Margo RMS on 25..1..2007 from where it was further

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consigned to speed post customer centre, Panaji Head Post Office for further disposal. On receipt of the complaint of the petitioner the Superintendent RMS, BM Division, Miraj took up the case with Manager, Speed Post Centre , Panaji who informed that records relating to article are not available. So the article is treated as an article lost in transit. The petitioner was therefore requested to prefer claim for compensation. The petitioner on 16..3..2007 sent lawyers notice intimating that the petitioner had sent a D.D of Rs. 1,000/- through speed post. Further petitioner sent a reminder on 29..5..2007. According to the opposite party as per gazette notification No. GSR 40(E) dtd: 21..1..99,

in the event of loss of domestic speed post article or loss of its content or damage to the content. Compensation shall be double the amount of composit speed post charges or Rs. 1,000/- which ever is less. Superintendent, RMS BM Division, Miraj issued sanction for compensation on 23..7..2007 for a sum of Rs. 50/-, being double the postage paid by the petitioneer. After issuing the compensation the Superintendent treated the case of the petitioner as closed. So, according to the petitioner the petition is not maintainable and the petitioner is not entitled for any of the reliefs sought for.

Points for determinations are :

i) Whether there is deficiency in service on the part of the opposite party

ii) Reliefs and costs?

Evidence in this case consists of affidavit filed by both parties and Ext. A1 to A6 documents on the side of the petitioner and the Ext. B1 to B3 documents on the side of the opposite party.

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Point No. 1

According to the opposite party this petition is not maintainable before the Forum because, as per Section 6 of the Indian Post Office Act. The postal department or its official cannot be saddled with any liabilities.

Section 6 we reproduce;

The Government shall not incur any liability by reason of loss mis delivery or delay of, or damage to, any postal article in course of transmission by post, except in so far as such liability may in express terms by undertaken by the central government as herein after 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 fradulently or by his wilful act or default.

So, section 6 exempts post office from any liability for loss mis delivery, delay or damage of any postal article during course of transmission by post, except to such extent to the liability that may be undertaken by the government by any express terms. Similarly an officer of the post office is also exempted from any liability unless he has caused loss fraudently or by his willful act. So, as per the post office act no compensation can be paid by the opposite party. Further more we are of the opinion that postal department is performing a statutory service and there was no hiring of any service for a consideration and there was no contractual liability.

Further as per notification No. GSR 40 (E) 21..1..99 which inserted the following condition after condition No. (5) of rules 66 B of post office rules “in case of delay of domestic speed post article beyond the norms the department of post from time to time

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the compensation to be provided shall be equal to the composit speed post charge paid. In the event of lost of domestic speed articles or loss of its contents or damage to the contents, the compensation shall be double the amount of composit speed post charges paid or Rs. 1,000/- which ever is less. Here, the opposite party had given compensation for the loss to the petitioner as per Section 66 B (5) of the Act. . So, under the Consumer Protection Act 1986 we cannot go beyond the statutory provisions and grand compensation morethan what is statutory fixed. Consumer Forum cannot go beyond the terms of the contract, howsoever oppressive that may be, unless those terms are against public policy, illegal or void. We also advise the postal authorities to do well better to the customers and so there energies and time and devot the same for more fruitful purpose. On the above findings we are of the opinion that since the postal authority is doing statutory function the petition is not maintainable before this Forum. So, point No. 1 is found accordingly.

Point No. 2

In view of the finding in point No. 1, the petition is dismissed as not maintainable before this Forum. Considering the facts and circumstances of the case, no cost is ordered.

Dictated by me transcribed by the Confidential Assistant corrected by me and Pronounced in the Open Forum on this the 30^th day of October, 2008.