IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOLLAM
DATED THIS THE 25th DAY OF JANAUARY 2020
Present: - Sri.E.M.Muhammed Ibrahim, B.A, LLM. President
Smt.S.SandhyaRani. Bsc, LLB ,Member
Sri.Stanly Harold, B.A.LLB, Member
CC No.195/13
Sudhi.D : Complainant
Sudarsana Vilasam
Chittacodu, Marandu P.O
Ezhukone-691505.
[By Adv.P.R.Raveendran Pillai]
V/s
- Postal Superintendent : Opposite parties
Head post office
Kollam.
- Postmaster
Head post office
Kollam.
FAIR ORDER
Sri.E.M.Muhammed Ibrahim, B.A, LLM. President
This is a case based on a consumer complaint filed under section 12 of the Consumer Protection Act 1986.
The averments in the complaint as in short as follows.
Complainant was working as the Assistant Manager in KSFE Kollam Main Branch and he had applied for a housing loan from DGM (P&HR), Bhadratha, Museum Road, Thrissur of KSFE. For the purpose of sanctioning the loan the original sale deed No.724/2011, executed in favor of the complainant and his wife, in respect of 10.72 ares of landed property comprised under resurvey No.267/12-2 of Ezhukone Village, along with prior deeds and other related documents were entrusted with the Manager KSFE Main Branch Kollam. The said Manager sent the said documents by registered parcel by putting in a safe cover, through Head Post Office, Kollam on 28.06.2013 as per Bar Code No.RL 226668353 addressed to DGM (P&HR) of KSFE Head Office, Bhadratha, Museum Road, Thrissur. Thereafter on enquiry the complainant realized that the parcel including title deed and connected documents were not reached at KSFE HO Thrissur. Due to delay in reaching the registered postal article, the Manager, KSFE Kollam, made a complaint to the Superintendent, Post Office, Kollam Division for which there was no response. Again a remainder was sent on 31.07.2013 and the same was forwarded to the Returned letter office, Thiruvananthapuram. Thereafter the Head Office, KSFE, Thrissur received the documents sent by the Manager, Returned letter office, Department of Postal India, Thiruvananthapuram in a mutilated condition along with a covering letter stating that the parcel was received at Returned Letter Office, Thiruvananthapuram without Registered cover and in a mutilated condition from Parappur Post office. Here the said registered parcel was wrongly sent by the opposite parties to one Fathima Ashraf Rayamarakkar House, Pathiyoor Kulangara P.O., Parappur 680552 by putting in their registered parcel containing tin paint and locks and during transit the tin containing paint was broken and hence the sale deeds and connected documents of the complainant happened to be mutilated . The said deed was registered in SRO Ezhukone by using stamp paper worth Rs.41,000/- and value of the property is worth Rs.1 lakh per cent. Due to the negligent act of the opposite parties the sale deed and connected documents belongs to the complainant were completely damaged and became useless. The mutilated deeds are neither useful to him nor to his legal heirs in future. The complainant had remitted sufficient service charges against expected service from opposite parties but by mutilating the registered parcel opposite parties have committed deficiency in service and as individual postal employees, all the opposite parties are responsible for the misdelivery, delay and damage. In order to get it declared, the mutilated documents as irreparably damaged, the complaint has to file declaratory suit before competent civil court which will also create financial burden upon him. Hence the opposite parties are liable to pay Rs.19,50,000/- as compensation for mental agony and financial loss.
Opposite parties entered appearance and resisted the averments in the complaint by filing version and additional version stating that 1st opposite party received a complaint dated 18.07.2013 from Manager KSFE, Kollam Main branch alleging non delivery of a registered parcel RL 226668353 IN dated 28.06.2013 of Kollam Head Post Office addressed to DGM (P&HR) KSFE Ltd., Bhadratha, Thrissur. Since the complainant is not the sender or recipient of the registered parcel he cannot be treated as customer. Opposite parties further contends that the complainant has sought for a huge compensation of 19.50 lakhs which is also not maintainable as the action of any opposite parties didn’t cause any loss or damage to the complainant. Opposite parties further points out that the postal department of Post India is handling a large number of parcel letters each day rendering satisfactory service to its customers and in this particular case, it is observed that another article booked by the Department which contained paint got damaged during the course of transit resulting in causing damage to the articles under reference, which is not done deliberately and so there is no deficiency in service on the part of opposite parties. Opposite parties would contend that the KSFE Kollam branch sent the registered parcel under dispute on his behalf is not maintainable as such KSFE was not impleaded as one of the opposite parties nor filed any complainant by itself. It is further contended that the customer did not insured the article and had it been done, the sender would have been entitled for loss and damages.
The opposite parties by relaying on the dictum laid down by the Hon’ble National Commission would further contented that the services rendered by the post offices are merely statutory and there is no contractual liability. The department of opposite parties performs a government function and Govt. does not engage in commercial transaction with the customer or on agreement of a contractual nature. According to opposite parties Section 6 of the post office Act 1898 statutorily exempt Govt. from any liability for loss, misdelivery, delay or damage to any postal article in the course of transmission by post, except in so far as such liability may in express terms be undertaken by the central Government as herein after provided and no officer of the post office shall incur any liability by reason, or any such loss misdelivery, delay or damage unless he has done the same fraudulently or by willful act or default. Opposite parties further contends that they are not liable to any compensation in the instant case since there is no allegation of any fraudulent or willful act on the part of opposite parties and points out that the incident occurred due to an unforeseen reason and there is no willful deficiency on the part of opposite parties. Hence the claim of the complainant to individual liability of the opposite parties is not maintainable. So the complaint is only to be dismissed.
Points for consideration are:-
- Whether the complaint is maintainable?
- Whether there is any deficiency in service on the part of opposite parties as alleged?
- Whether the complainant is entitled for compensation from the opposite parties as prayed for?
- Reliefs and costs?
Evidence on the side of the complainant consists of the oral evidence of PW1 and Ext.P1 to P7 and Ext.X1documents. Ext.P1is the letter dated 08.08.2013 issued from department of Post India (to DGM (P&HR), KSFE Ltd (HO) Bhadratha, Thrissur). Ext.P2 is the Postal receipt, Ext.P3 is a letter dated 08.07.2013 issued by sub Post Master Parappur Ext.P4 series are 3 mutilated documents. The covering letter by which these 3 documents are transmitted to the Forum, by the Deputy General Manager, KSFE (P&HR) is marked as Ext.X1. Ext.P5 is the Letter dated 31.07.2013 issued by KSFE Ltd. Manager, Kollam Main to the Superintendent Post Office Kollam Ext.P6 is another Letter dated 02.08.2013 issued by KSFE Ltd by Branch Manger Kollam main addressed to The Manager RLO Thiruvananthapuram, Ext.P7 is a letter dated 23.07.2013 issued by Department of posts-India, Senior Superintendent of Post office Kollam Division to the Branch Manager, KSFE, Kollam.
The opposite parties did not adduce any oral or documentary evidence.
Both sides have filed notes of argument.
Heard both sides.
Point No. 1
The main contention of the opposite parties is that the complaint is not maintainable mainly due to the reason that the complainant has no locus standi to file the complaint as he has neither booked the parcel nor a customer of the opposite parties. According to the opposite parties the registered parcel has been booked by the Branch Manager, KSFE, Kollam which was addressed to KSFE, Head Quarter, Thrissur. We find no force in the above contention. It is well settled that a consumer includes any beneficiary of the person who availed service. The term consumer is defined under Section 2(d) of the Consumer Protection Act. Accordingly a consumer means any person who buys any goods for consideration and includes any user of such goods when such use is made with the approval of such person. Any person who hires or avails of any service for consideration and includes any beneficiary of such service when such service are availed of with the approval of such person. In view of the facts and circumstances of the case and in view of the above definition it is cristal clear that even though the documents were not sent through registered parcel by the complainant it was on behalf of the complainant, the Manager, KSFE, Thrissur has transmitted the above documents to Thrissur to the addressee as registered parcel. Therefore it is cristal clear that the sender has forwarded the documents on behalf of the complainant and hence he is a beneficiary of the sender who also comes within the definition of consumer.
Point No. 2 & 3
For avoiding repetition of discussion of materials these 2 points are considered together. The main allegation of the complainant is that in order to obtain a housing loan from DGM (P&HR), KSFE Ltd (HO) Bhadratha, Museum road, Thrissur he entrusted the title deed of the property belongs to himself and his wife along with prior title deed and other documents to the Manager, KSFE main branch, Kollam who in turn transmitted the above documents through registered post through Head post office, Kollam on 28.06.2013 as per Bar code No.RL226668353IN addressed to the above DGM. However opposite parties without properly sending the Registered cover containing parcel to the addressee forwarded the Registered parcel to one Fathima Ashraf, Rayamarakkar House, Pathiyoorkulangara, Parappar by putting in a registered parcel along with a tin containing paint and locks. As the opposite parties inadvertently put the registered parcel containing the valid documents belongs to complainant into registered parcel of tin containing full of paint and locks, the said sale deed happened to be mutilated which is solely due to the deficiency in service, negligence and default on the part of opposite parties and their subordinate employees. It is further alleged that due to the non receipt of the valid documents sent by the complainant through his official superior he could not avail the housing loan in time. There is misdelivery and damage to the parcel article containing valid documents which according to the complainant is due to the default of the opposite parties and thereby he sustained irreparable injury, mental agony apart from financial loss. It is argued on behalf of the opposite party that the alleged act is not done deliberately and therefore there is no willful act of deficiency in service on the part of opposite parties. We are unable to agree with the above contention. Admittedly manager who booked the postal article has properly sent documents under registered parcel in a safer cover through Head Post Office, Kollam on 28.06.13. It is clear from the available materials that the postal authorities after verifying the address of the sender and recipient has affixed bar code bearing No.RL226668353IN and sent the same to the addressee. But the employees of the post office negligently put the said registered parcel in another parcel containing a tin having paint and locks which was registered in favor of another lady by name Fathima Ashraf residing at Parappar and due to the inadvertent inclusion of the said registered parcel sent on behalf of the complainant in another registered parcel containing tin paints and lock the entire episode happened. It is also evident from Ext.A4 series mutilated documents that during transit the tin containing paint damaged and broken down and the paint came out from the tin spoiled and mutilated to the valid registered documents sent along with the packet containing paint. In the circumstance there is no doubt that the damage and mutilation of the valuable registered documents of the complainant was happened due to the culpable negligence of the postal employees and hence there is deficiency in service on the part of the subordinate employees of the opposite parties and therefore opposite parties are vicariously liable.
The learned counsel for the opposite parties has vehemently argued before the Forum that the service referred by the post office are merely statutory and there is no contractual liability. We find no force in the above argument also. For sending registered parcel the sender has to pay consideration by way of affixing sufficient postal stamp as per rules prescribed the postal authorities. If no sufficient postal stamp is affixed postal authorities would not receive the registered parcel nor affixed the bar code. Once it is received and bar code is affixed it is the contractual duty of the postal authorities to serve the registered parcel to the addressee without damaging or mutilating the article contained in the registered parcel. In the circumstance one cannot say that there is no contractual liability and also cannot be said that the post office is a governmental agency and duties performed by the postal authorities is government function and postal authorities does not engaged in commercial transaction with customer nor there is an agreement of a contractual nature.
The opposite parties would further contend by relying on Section 6 of the Post Office Act 1898 that the Act statutorily exempt the Govt. from any liability for the loss, misdelivery, delay or damage to any postal article in the course of transmission by post, except in so far as such liability may in express terms be 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 done the same fraudulently or by willful act or default. Here in this case it is cristal clear from the available materials that the postal employees working under the opposite parties have not properly transmitted the registered parcel willfully . Instead they included the registered parcel addressed to the Manager, KSFE, Thrissur in the name of another individual by name Fathima Ashraf, Parappar who is residing not under the same post office. The above act of the postal department is patently an act of negligence and therefore Sec.6 of the Post Office Act 1898 is not at all applicable to the facts of this case.
Yet another contention raised on behalf of the opposite parties is that the customer did not insure the articles and had it been done the sender would have entitled for compensation in case of loss or damage. It is true that the customer has sent the documents as uninsured parcel and insurance was not taken. But there is nothing on record to indicate that if the document is to be sent it should be insured compulsorily. The contention of the opposite parties that the postal employees have mismanaged the registered parcel simply because the registered parcel was not insured . Even if it was not insured the postal employees are bound to send the same with due care and caution and ought to have taken all attempt to get the registered cover safely in the hands of the addressee. But in this case careless act on the part of the postal authorities is crystal clear. On evaluating the entire materials available on record including Ext.A4 series documents we have no hesitation to hold that there is deficiency in service on the part of the postal employees who are the subordinate of the opposite parties and therefore the opposite parties are vicariously liable for the act of deficiency in service of their employees and liable to pay compensation.
It is brought out in evidence of PW1 that due to the non receipt of the valid documents sent by the complainant through his official superior he could not avail the housing loan in time and hence he sustained irreparable injury, mental agony apart from financial loss. According to PW1 an amount of Rs.41,100/- was spent as stamp duty for registering the above document. He has also spent Rs.5000/- for taking certified copy of the above documents and is entitled to get Rs.25,000/- as compensation for the mental agony. It is true that the complainant has spent Rs.41100/- towards stamp duty and registration charges but the document is still in existence even though it is mutilated or damaged and the right of property stated in the document is still in the name of the wife of the complainant and that cannot be lost simply because the document is damaged or mutilated. Therefore the complainant is not entitled to get the registration charges but he is entitled to get compensation for not getting housing loan and also entitled to get compensation for the mental agony and the amount spent by him for obtaining certified copy of the documents and costs of the proceedings. In view of the facts and circumstances of the case we are of the view that an amount of Rs.50,000/- will be sufficient to cover all the above loss and compensation and also entitled to get Rs.5,000/- as costs of the proceedings. The points answered accordingly.
Point No. 4
In the result complaint stands allowed directing the opposite parties 1&2 to pay Rs.50,000/- as compensation for deficiency in service committed by their subordinate employees and also for the mental agony and financial loss sustained by the complainant.
The opposite parties are also directed to pay Rs.5,000/- as costs of the proceedings.
The opposite parties are directed to pay compensation amounting to Rs.50,000/- within 45 days from the date of receipt of a copy of this order failing which the complainant is entitled to recover the said amount with interest @ 9% p.a from the date of order till realization along with costs Rs.5000/- from opposite party No.1&2 jointly and severally and from their assets.
Dictated to the Confidential Assistant Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the Open Forum on this the 25th day of January 2020.
E.M.Muhammed Ibrahim:Sd/-
Stanly Harold:Sd/-
Forwarded/by Order
Senior Superintendent
INDEX
Witnesses Examined for the Complainant:-
PW1 : Sudhi.D
Documents marked for the complainant
Ext.P1 : Copy of letter dated 08.08.2013 issued from Dept. of post.
Ext.P2 : Copy of postal receipt.
Ext.P3 : Copy of letter dated 08.07.2013
Ext.P4 series: Mutilated documents(3 Nos.)
Ext.P5 : Copy of letter dated 31.07.13 issued by KSFE
Ext.P6 : Letter dated 02.08.2013.
Ext.P7 : Copy of letter dated 23.07.2013.
Ext.X1 : Covering letter
E.M.Muhammed Ibrahim:Sd/-
Stanly Harold:Sd/-
Forwarded/by Order
Senior Superintendent
