In the District Consumer Disputes Redressal Forum, Murshidabad
Berhampore, Murshidabad.
Case No. C.C/56 /2016
Date of filing: 07/04/2016. Date of Final Order: 26/04/2017
Yakub Anam Chowdhury.
S/O- late Sherful Anam Chowdhury.
Dist- Murshidabad, PIN-742189.……………………………...Complainant
- Vs-
- Post Master, Barua Sub Post Office.
-
Dist- Murshidabad, PIN-742189.
2). Post Man. Barua Sub Post Office.
Dist- Murshidabad, PIN-742189. …………….…………………. Opposite Party
Subhanjan Sengupta. Ld. Advocate .…………………….…. for the complainant.
Siddhartha Sankar Dhar. Ld. Advocate…………………..…for the Opposite Party.
Before: Hon’ble President, Anupam Bhattacharyya.
Hon’ble Member, Samaresh Kumar Mitra.
Hon’ble Member, Pranati Ali.
FINAL ORDER
Samaresh Kumar Mitra, Member.
The complainant files this complaint u/s 12 of C. P. Act, 1986 praying for an order directing the Opposite Party to pay Rs.1,93,000/-. Towards compensation for harassment and mental agony and any other relief or reliefs as this Forum deems fit and proper.
The case of the complainant, in brief, is that he carries on a firm on partnership basis under the name and style as “ Sherful- Ul- Anam- Chowhury” and paying tax regularly. Dispute cropped up when the OP No.2 refused to deliver the tax return came in the name of complainants Firm in the month of Feb.2015. The Complainant approached the matter before the OP No.1 but he denied to deliver and informed that the matter is to be dealt with the Superintendant of Post Offices, Murshidabad division. Then the complainant had to travel all along at Berhampore Head Post Office for solving the same for times without number but all his effort went in vain. That after an year in the month of February, 2016 the Superintendant of Post Offices, Murshidabad division had written a letter to this complainant informing the matter. The complainant approached the opposite parties praying for proper redress but in reply the OP behaved badly with this complainant and did not entertain the claim of the complainant. The acts of the opposite parties are a glaring example of deficiency of service which clearly falls under the purview of the Consumer Protection Act as amended till date.
The opposite party No.1 filed written version and denied the allegations as leveled against him and assailed that the disputed article was sent in the name of Sherful Anam Chowdhury and it was found that Sherful Anam Chowdhury has expired. So it was not possible to the OP to deliver the article to others where addressee is dead. The petitioner claimed before the authority that Sherful Anam Chowdhury is a partnership Firm but the address which has been written on the article did not reflect that Sherful Anam Chowdhury is partnership firm. Subsequently the petitioner filed a copy of partnership firm which shows that the name of the partnership firm is ”Shers-ul- Anam- Chowdhury” and one of the partner of the firm is Sherful Anam Chowdhury. The postal department holds an enquiry and came to know that there is an existence of such firm in a house without any Sign Board. If any article be sent to the addressee then the description of the addressee should be mentioned but in the instant case “Shers-ul- Anam- Chowdhury” the partnership firm has not been mentioned in the article. At last after a prolonged discussion the OP delivered the article to the petitioner who receipts the article as a partner of the above mentioned partnership firm. So there is no deficiency of service on the part of the OP. He further assailed that the application is not maintainable as the petitioner has filed the case in personal capacity not as a partner of the partnership firm namely “Shers-ul- Anam- Chowdhury”.
The complainant filed evidence on affidavit in support of the averments contained in the complaint. He assailed that he run a firm on partnership basis under the name & style as SHERF-UL- ANAM- CHOWDHURY and he is regular taxpayer and run the business with utter name & fame and sincerity. In the month of February,2015 as usual the tax return came to my address but the opposite party No.2 denied to deliver the same to him and he tried to get the article delivered several times but his effort comes into all in vain. He approached the OP No.1 to get his article delivered but the said OP denied to deliver the same and advised to deal the matter with the Superintendant of Post Offices, Murshidabad Division. That ultimately after prolonged harassment and mental agony the said article was delivered after more than one year. He filed necessary documents in support of his case and prayed for compensation of Rs.1,93,000 towards harassment and mental agony.
Argument as advanced by the agents of the parties heard in full.
From the discussion herein above, we find the following Issues/Points for consideration.
ISSUES/POINTS FOR CONSIDERATION
1). Whether the Complainant is a ‘Consumer’ of the opposite party?
2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3).Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards the Complainant?
4).Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?
DECISION WITH REASONS
In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.
(1).Whether the Complainant Yakub Anam Chowdhury is a ‘Consumer’ of the opposite party?
From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. The complainant herein is the consumer of the OP, as the sender paid the money to the OP authority for delivery an article to this addressee so he is entitled to get service from the OP as beneficiary.
(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
Both the complainant and opposite parties are residents/having office address within the district of Murshidabad. The complaint valued Rs.1,93,440/- for loss sustained by the complainant and as compensation for mental agony and other expenses ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
(3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?
It appears from the case record and the documents as produced by the parties in dispute that the OP No.2 refused to deliver an article to this complainant on the pretext that the name of the addressee was Sherful-Anam- Chowdhury who expired during the period of delivery but in fact the article was addressed to a Partnership firm namely “Sherful-Anam- Chowdhury” and this complainant is the partner of that firm. In pertinent to Para 6 of the written Version that the OP could not deliver the article as he found that Sherful Anam Chowdhury expired long before the period of delivery in question. The petitioner claimed before the OP authority that Sherful Anam Chowdhury is a partnership firm but the address written on the article did not reflect that Sherful Anam Chowdhury is a partnership firm. The postal department holds an enquiry and came to know that there is an existence of such firm in a house without any signboard. After a prolonged discussion the OP delivered the article to the complainant as a partner of the said firm.
Perusing the partnership deed dated 15.12.1988, it transpires that the partners are (1) Sherful Anam Chowdhury S/O- Haji Abdul Rahaman Chowdhury, (2) Safiqul Rahaman Choudhury, S/O- Sherful Anam Chowdhury (3) Yusuf Anam Choudhury,S/O- Sherful Anam Chowdhury (4) Yakub Anam Choudhury, S/O- Sherful Anam Chowdhury (5) Ismail Anam Choudhury, S/O- Sherful Anam Chowdhury, party No.1 is the father of 2,3,4&5 are sons of Party No.1. The name and style of the firm is “Sherf- Ul-Anam-Choudhury and this firm was enlisted as Contractor with Irrigation and water ways dept. and Public works dept. Govt. of W.B.
The letter dated 01.02.2016 of Supdt. of Post Offices, Murshidabad Division to Sherful Anam Chowdhury regarding delivery of postal Articles speaks that the delivery of the postal articles addressed to the addressee “Sherful Anam Chowdhury” who died on 13.09.1998 puts the question marks about the delivery of postal articles and it is impossible for the postal department to know either “Sherful Anam Chowdhury is a person or a partnership firm. To solve the problem enquiry, investigation & consultation with Ld. G.P. has been made and the complainant is requested to write the name of his firm as “Sherful Anam Chowdhury” A partnership firm for smooth delivery of the postal articles to avoid future complicacy.
Ld. Counsel for the complainant argued that the deficiency in service stands proved against the OP because the OP have failed to show reason for the late delivery of the articles and too were delivered to the addressee after about 1 year from the date of booking. Through a letter the authority informed that inquiry, investigation and advice of G.P. took before the delivery of article and to perform such actives the answering OP took more than 1 Year. So, it is a glaring example of deficiency of service on the part of the OP.
It is contended by the Ld. Counsel for the OP that in view of Sec. 6 of Post Office Act, the OP shall not incur any liability in respect of the delay in delivery or loss of article unless some willful and fraudulent act is not proved against the officials of the department. He also averred that addressee is not a consumer of OP and the article could not be delivered as addressee died a long before the delivery. By citing a case reference of Hon’ble National Commission in Bhupesh Gupta Vs. Oriental Insurance Company Ltd., IV (2016) CPJ 68 (NC) the Ld. Counsel assailed that Partnership firm is not a Consumer within the definition of Consumer Protection Act, 1986.
Now, the question is whether the willful act and willful default on the part of the opposite party is proved or not. In this context reference may be made to the judgment of the Hon’ble Tamil Nadu State Commissi0n, Chennai reported as Post Master, Krishnagiri Post Office & Anr. Vs. P. Pasupathi II(2003) CPJ.
The moot question that arises for consideration in the light of legal provision as stated above is as to whether there is any material placed on record pointing out the practice of fraud or willful act or default on the part of any officer of the Post office in question in the case on hand. The further incidental question that may arise for consideration is as to what is the sort of proof of such aspects of the matter which is required to mulct liability either on the government or any officer of the post Office in question.
The general rule is that as and when any person likes the complainant coming forward with a complaint alleging the practice of fraud or willful act or default on any of the officer of the Post Office in question must have to prove the same in order to mulct liability upon such officer against whom the complaint is launched.
Having considered the facts and circumstances of the case and the rival contentions of the Ld. Counsel for the parties, we find force in the contention raised on behalf of the complainant. From the act and conduct of the opposite parties it is fully established that there is some dishonest intention on the part of the opposite parties because there is no evidence on behalf of the opposite parties to show reason for the delay in delivering the article at the destination. Even in the written reply the opposite parties took the plea that the addressee died a long before and no where it is written in the column of address that the name of the addressee is a partnership firm as a result the OP No.2 could not deliver the same to the complainant although complainant approached his status before the concerned person/authority to get the article delivered. The utterance of the complainant fulfilled after one year if the article be time barred then the complainant would have lost the opportunity. So the delay in delivery is well established from the record as well as conduct of the OP.
We are of the opinion that the Govt. of India framed rules to provide compensation to the consumers when a delay or damage etc is caused due to causes beyond control of the authorities and we presume that these rules were not at all framed to provide immunity to the defaulting and negligent officials against their faults. Therefore, these rules also provide no protection to the postal authorities in the instant case. The facts and circumstances of the instant case are fully attracted to Sahib Singhs case ( Supra) as well as Niranjan Sahoos case
( Supra). It is evident on record that the Opposite parties have not been able to produce any report about the inquiry conducted by them with respect to the delay of delivery of the article at the destination. The opposite parties have tried to absolve themselves from their liability by taking shelter of section 6 of the Indian Post Office Act,1898.
In view of our aforesaid discussion the deficiency of service on the part of the opposite parties stands proved on record and the same is not to be overlooked keeping in view the fact that the complainant suffered from mental pain and agony at the behest of negligence on the part of the opposite parties.
4. Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?
The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant proved his case, so the Opposite Party No.1&2 could not avoid their responsibility of paying the claim of the complainant as ascertained by this Forum.
ORDER
Hence, it is ordered that the complaint case being No.56/2016 be and the same is allowed on contest against the Opposite Party No. 1&2 with a litigation cost of Rs.5000 payable to this complainant.
The Opposite Party No.1&2 are directed to pay jointly and/or severally a sum of Rs.10, 000/- as compensation for harassment and mental agony to this complainant within 45 days from the date of final order.
At the event of failure to comply with the order the Opposite Party No. 1&2 shall pay fine @Rs.50/- for each day's delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the Consumer Legal Aid Account.
Let a plain copy of this Order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary Post for information & necessary action.
Dictated and corrected by me.
Member, Member, President.
