IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA. Dated this the 22nd day of November, 2010. Present:- Sri. Jacob Stephen (President) Smt. C. Lathika Bhai (Member) Sri. N. Premkumar (Member) C.C.No.118/09 (Filed on 27.08.2009) Between: Mini Kurian, Proprietor, M/s. Waves India Ltd., Kodiat Alice Plaza Buildings, Opp. Pushpagiri Medical College Hospital, Thiruvalla, Pathanamthitta Dist. (By Adv. M.K. Ayyappan Pillai) ..... Complainant. And: 1. The Postmaster General of Kerala Circles, Thiruvananthapuram. 2. The Superintendent of Post Offices, Head Post Office, Thiruvalla. 3. Damodaran, Delivery Agent, Speed Post Section, Head Post Office, Thiruvalla. (By Adv. T. Harikrishnan) ..... Opposite parties. O R D E R Smt. C. Lathika Bhai (Member): The complainant has filed this complaint against the opposite parties for getting a relief from the Forum. 2. The facts of the complaint is as follows:- The complainant is the Proprietor of the Waves India Ltd., Thiruvalla, engaged in the business of Travel Agency and Tourism Promotion for the last 7 years. The complainant initiated steps to obtain licence for Recruiting Agency from the Ministry of overseas, Indian Affairs, New Delhi. For obtaining the licence a bank guarantee for ` 3 lakhs and the personal appearance of the Proprietor for personal interview at New Delhi for assessing the suitability as a recruiting agent under the Emigration Act was necessary. Due to the delay caused in getting the licence after complying these formalities, complainant made enquiry with the Ministry then informed her that the licence was despatched through speed post. As the non-delivery of the licence the complainant preferred a complaint before the 2nd opposite party on 28.3.09. The 2nd opposite party in his reply dated 20.4.09 stated as the speed post article No.ED846087521 addressed to the complainant has been delivered to one Akhil Mohan, Plamparampil House, Kilimala, who was seen in the office premises. On enquiry it is revealed that the 3rd opposite party has delivered the article on 8.2.09 which is not even disclosed by the 2nd opposite party in his letter dated 20.4.09. 8th February was Sunday being holiday the office of the complainant remained closed. The speed post article is as good as a registered article, which is delivered to some one who is seen in the premises. The person to whom the article is delivered is not duty bound or has any obligation to hand over the articles to the addressee. There is a negligence and dereliction of duty on the part of 3rd opposite party. 3. The non-delivery of the article containing the licence in appointing the complainant as the recruiting agent of the Govt. of India, Ministry of Overseas Indian Affairs under the Emigration Act has caused much inconvenience and loss to the complainant. For issuing a fresh licence FIR has to be registered and consequential proceedings has to be followed. The person to whom the 3rd opposite party has delivered the article has been traced at Thrikkodithanam. But he said that he is unaware of receiving any article from a postman at Thiruvalla. By anticipating the licence in time spadework for recruiting was done and publicity also has been given. There were demands from various employees for different traders and certain person also were earmarked for sending abroad. All the hopes were shuttered due to the negligence of the opposite party. There is an average income of ` 15,000 per person recruited. At least 25 persons ought have been recruited and the complainant had lost ` 3,75,000 due to the deficiency in service of the opposite parties. The complainant is entitled to realise them from the opposite party. For obtaining fresh licence an amount of ` 25,000 is required, which also the complainant is entitled to realise from the opposite parties. In the circumstances, the complainant filed this complaint against the opposite parties for getting an order for allowing the complainant to realise ` 4,00,000 with interest along with cost from the opposite parties. The complainant prays for granting the relief. 4. The 1st and 2nd opposite parties have filed a common version stating the following contentions. The article booked at New Delhi on 7.2.09 was received at Thiruvalla Speed Post Centre on 8.2.09 and delivered on 8.2.09 itself under clear acquittance from the recipient. These opposite parties are not aware of the value or cost of the article, as the same was not an insured speed post article. Filing of the complaint with the opposite parties on 28.3.09 and the reply by the opposite party on 20.4.09 informing delivery of the article to Sri. Akhil Mohan, who was present at the premises of the complainant, is admitted. Thiruvalla Head Post Office is a National Speed Post Centre and function in all days throughout the year except 3 national holidays and two identified local holidays as such delivery of the speed post article on 8.2.09 (Sunday) was in order. As per the prevailing instructions, Speed post articles can be delivered under the acquittance obtained in proof of delivery from any person available in the premises of the addressee and that the person receiving delivery of speed post article need not necessarily be the addressee or his agent. The person to whom the article delivered was an inmate of the poor home run by the complainant and he was serving as a personal servant and helper to the complainant. The 3rd opposite party whose service were utilised for delivery of speed post articles as and when required is having sufficient knowledge of the locality, shop and institutions functioning in Kodiyat Alice Plaza, also men and women employed there in, their relationship etc. The department of posts is exempted from liability under Sec.6 of Indian Post Office Act 1898 for loss misdelivery, delay or damage to any postal articles in course of transmission by post, except in so far as such liability may express term be undertaken by the Central Govt. and no office of the post office shall incur any liability by reason of any such loss misdelivery, delay or damage, unless he has caused the same fraudulently or by his wilful act or fault. In this case, the article has been delivered in fact the very next day of its booking at Delhi that too on Sunday. So there is no loss, delay or damage in this case. The department had undertaken the liability for loss of a postal article in express terms only for insured postal articles. There is no deficiency in service from the part of this opposite parties. Hence they pray for the dismissal of the suit. 5. The 3rd opposite party has filed a version raising the following contentions: He has been employed as a postman at Thiruvalla Head Post Office and other post offices for the last 18 years in leave vacancies was an inmate of the poor home run by the complainant and he was serving as a personal servant and helper to the complainant at her institution as well as some nearby institutions in the same building in recent past. The complainant’s firm was closed on 8.2.09 as Sunday. The 3rd opposite party being on duty on 8.2.09 Sunday, to make an expeditious delivery of speed post article to the complainant, the addressee, effected the delivery to Sri. Akhil Mohan present at the premises of the addressee and in charge of the affairs at the premises who signed the delivery slip. The 3rd opposite party made the delivery in strict compliance with the mandate of the instructions of the Ministry of Posts, No.43-24/90 D(Pt) on the delivery of speed post articles dated 31.10.1990, where under it is provided that, delivery can be made to persons available at the premises of the addressee and such delivery need not be made only to the addressee or his/her agent. There is no negligence or dereliction of duty from the part of 3rd opposite party. The 3rd opposite party is not liable for any loss suffered by the complainant. Moreover the complainant has availed of the service of the respondents for a commercial purpose to which the C.P.Act does not apply. Therefore the 3rd opposite party prays for the dismissal of the complaint. 6. The points for consideration in the complaint are:- (1) Whether the complaint is maintainable before the Forum? (2) Whether the complainant is entitled to get a relief as prayed for in the complaint? (3) Reliefs & Costs? 7. The evidence in this case consists of the oral evidence of the complainant as PW1 and Ext.A1 to A2(a) marked for the complainant’s side. For the opposite parties, 2nd opposite party adduced oral evidence as DW1 and marked B1 to B3. 3rd opposite party adduced oral evidence as DW2 and one witness for the 3rd opposite party has examined as DW3. After closure of the evidence, both sides heard. 8. Points 1 to 3:- The complainant’s case is that she is engaged in the business of Travel Agency and Tourism Promotion, for expanding the business she applied for getting licence for Recruiting Agency from the Ministry of Overseas Indian Affairs. After complying all the formalities she did not get the licence then she enquired the matter with the Ministry and informed that the licence has been despatched through speed post under the opposite parties. On enquiry it is further revealed that the 3rd opposite party, an employee of the 2nd opposite party delivered the article on 8.2.09 to one Akhil Mohan, Plamparampil Kilimala who was seen in the office premises. The complainant trace out the person to whom the speed post article delivered. But he denied the receival of article from 3rd opposite party. The non-getting of the licence due to the negligence and dereliction of the opposite parties caused much inconvenience and loss to the complainant. Hence she filed this complaint for getting the relieves as sought for in the complaint. 9. In order to prove the complainant’s case, the complainant adduced oral evidence as PW1 and Exts.A1 to A2(a) were marked. Ext.A1 is the letter dated 20.4.09 issued by the 2nd opposite party to the complainant. Ext.A2 is the copy of the application of the bank guarantee dated 10.12.08. Ext.A2(a) is the copy D.D of bank guarantee. The opposite parties cross-examined PW1. 10. The opposite parties contended that the speed post article booked at Delhi on 7.2.09 was received at Thiruvalla Speed Post Centre on 8.2.09 and delivered on 8.2.09 under clear acquittance from the recipient. The 3rd opposite party delivered the article to Sri. Akhil Mohan who was present at the premises of the complainant. As per the prevailing instructions speed post article can be delivered under acquittance obtained in proof of delivery from any person available in the premises of the addressee and that person receiving delivery of speed post article need not necessarily be the addressee or his agent. No office of the post office shall incur any liability by reason of any loss, misdelivery, delay or damage, unless he has caused the same fraudulently or by his willful act or default. There is no negligence or dereliction of duty from the part of them. 11. In order to prove the contentions of this opposite parties, the 2nd opposite party adduced oral evidence as DW1 and Ext.B1 to B3 were marked. Ext.B1 is the copy of the speed post delivery slip dated 8.2.09. Ext.B2 is the copy of circular issued by the Govt. of India, Ministry of Communication of Dept. of Post. Ext.B3 is the statement given by the 3rd opposite party before the Asst. Superintendent of Post Office, Thiruvalla. Complainant’s counsel has been cross-examined DW1. 12. 3rd opposite party contended that he has been employed as a postman at Thiruvalla Post Office and other post offices for the last 18 years. The 3rd opposite party has known the institutions run by the complainant and Sri. Akhil Mohan was serving as a personal several and helper to the complainant at her institution as well as some nearby institutions in the same building. To make an expeditions delivery of the speed post article to the complainant, the addressee of speed post article No.846087521 effected the delivery to Sri. Akhil Mohan, present at the premises of the addressee who signed the delivery slip. The 3rd opposite party made such delivery in strict compliance with the mandate of the instructions of the Ministry of Posts. There is no deficiency or dereliction of duty from the part of this opposite party. 13. There is no documentary evidence from the part of this opposite party. 14. From the averments and pleadings we have gone through the materials on records. On a perusal of Ext.B1 we can see that the speed post article in the name of the complainant’s firm was received by one Akhil Mohan, Plamparampil House, Kilimala on 8.2.09. According to the complainant the speed post article was the licence for recruiting agency from the Ministry of Overseas Indian Affairs. The person to whom the speed post article is delivered is not known to her and she has not get the licence. The speed post article to be delivered either to the addressee or the authorised agent. Hence there is a negligence and dereliction of duty from the part of 3rd opposite party. 15. On a perusal of Ext.B2 direction given by the Govt. of India Ministry of Communication in this subject matter of Delivery of Speed post articles stated as a large number of speed post articles are not delivered on the day of its receipt on the ground of non-availability of the addressee or his authorised agent. The delayed delivery defects the very purpose for which the articles have been sent. It has therefore, been decided that henceforth speed post articles can be delivered under acquittance obtained in proof of delivery from any person available in the premises or the addressee. The person receiving the delivery of speed post article need not necessarily be the addressee or his agent. According to the 3rd opposite party he had made such delivery in strict compliance with the mandate of the instructions as per Ext.B2. 16. At the time of cross-examination, PW1 stated that the person to whom the delivery was effected, Sri. Akhil Mohan is not known to her. But this statement was contradicted by DW3. DW3 deposed that Akhil Mohan was an inmate of the poor home run by the complainant in the building owned by him (DW3). Further he stated that during 2008-09 Sri. Akhil Mohan was serving as an attender of the complainant’s institution and at that time he had 20 years. This depositions are not challenged by the complainant. The 3rd opposite party delivered the article to Sri. Akhil Mohan, a personal servant of the complainant and it was in good faith believing that the same will be handed over to the complainant. It is an admitted fact that the 3rd opposite party has not delivered the speed post article to the addressee. But there is no evidence from the complainant that the 3rd opposite party fraudulently or willfully with malafide intention delivered the speed post article to the person who was available in the premises of the complainant. To ensure speedy transmission and delivery of the article, the articles are sent by speed post. The 3rd opposite party has been employed as a postman at Thiruvalla and other post offices for the last 18 years in leave vacancies. At the time of cross-examination, DW2 (3rd opposite party) admitted that he knows the complainant and her employees and the person Mr. Akhil Mohan to whom the speed post article delivered by him. He is employed in the complainant’s institution. 17. From the evidence, it can be seen that the 3rd opposite party had made the delivery in compliance with Ext.B2 direction given by the Ministry of Posts a telegraph for the delivery of speed post articles. Ext.B2 has not been challenged by the complainant with any documentary evidence. The postal department had undertaken liability for the loss of postal articles in express terms only for insured postal articles and as such no liability could be fastened on the opposite parties as the lost articles was not insured. In the circumstances, we could not find any deficiency in service from the part of opposite parties. Hence the complaint is liable to be dismissed. 18. In the result, the complaint is dismissed. No cost. Declared in the Open Forum on this the 22nd day of November, 2010. (Sd/-) C. Lathika Bhai, (Member) Sri. Jacob Stephen (President) : (Sd/-) Sri. N. Premkumar (Member) : (Sd/-) Appendix: Witness examined on the side of the complainant: PW1 : Mini Kurian Exhibits marked on the side of the complainant: A1 : Photocopy of the letter dated 20.4.09 issued by the 2nd opposite party to the complainant. A2 : Photocopy of request for Bank Guarantee for Rs.3 lakhs dated 10.12.08. A2(a) : Photocopy of bank guarantee. Witness examined on the side of the opposite parties: DW1 : Venunathan Pillai. R. DW2 : Damodaran Pillai DW3 : V.A. Abraham Exhibits marked on the side of the opposite parties: B1 : Photocopy of the speed post delivery slip dated 8.2.09. B2 : Photocopy of circular issued by the Govt. of India, Ministry of Communications Dept. of Posts. B3 : Photocopy of statement dated 22.9.09 sent by the 3rd opposite party to the Asst. Superintendent of Post Offices, Thiruvalla. (By Order) Senior Superintendent. Copy to:- (1) Mini Kurian, Proprietor, M/s. Waves India Ltd., Kodiat Alice Plaza Buildings, Opp. Pushpagiri Medical College Hospital, Thiruvalla, Pathanamthitta Dist. (2) The Postmaster General of Kerala Circles, Thiruvananthapuram. (3) The Superintendent of Post Offices, Head Post Office, Thiruvalla. (4) Damodaran, Delivery Agent, Speed Post Section, Head Post Office, Thiruvalla. (5) The Stock File. | 
