SMT. RAVI SUSHA: PRESIDENT
Complainant has filed this complaint U/s 12 of Consumer Protection Act 1986 for getting an order directing opposite parties to pay Rs.1,41,877/- together with compensation and cost of the proceedings of the case alleging deficiency in service on the part of opposite parties.
Brief facts of the case is that the complainant is an auto driver. A third party preferred a claim against the complainant before the motor accident claims tribunal Thalassery which was numbered as OPMV 285/2013. The Motor Accident Claim Tribunal issued notice in the above case to the complainant through Registered Post. Instead of serving the same, the OP No.1 returned the same to the tribunal. This had lead to an ex-parte proceedings without hearing the complainant. Thereafter on 27/10/2016 the Honorable Tribunal passed the award against the complainant in that OPMV 285/2013 without hearing him. Then on filing the execution petition by petitioner in the OP (MV) the Tribunal issue notice to the OP the said notice was entrusted to OP No.2 on 09/06/2017 to the complainant. The said postal article also was not served to the complainant. OP No.1 and 2 were duly responsible to serve it properly to the addressee with due diligence and prudence expected it their discharge of official duties. However OP No.2 did not give any written intimation to the complainant’s aged mother who was present at that time in the house. Without giving written intimation to the persons available in the complainant’s house the OP No.2 returned the article. Complainant alleged that it is a serious deficiency from the side of the OPs of not serving the letter to the complainant by which the revenue recovery proceedings were initiated against the complainant; it caused mental agony to the complainant. OP NO.1 to 3 who are jointly and severally liable for the said act. Hence this complaint.
OPs 1 to 3 filed version denying the entire allegation of the complainant except for the facts expressly admitted herein. The complaint of the applicant alleging irregular return of two registered article are NO. RL76136073 IN & RL996989985IN. The 1st letter said to have been sent on 22/05/2013 was not traceable with this department as the number provided by the complainant only 12 digits whereas the registered numbers issued by the department are in 13 digits. As regard to the registered letter No. RL996989985IN, mentioned in the application was received at Movancherry post office on 07/06/2017 and taken out for delivery on the same day. But the same could not be delivered as the addressee was not there during the time postman visited his house. The arrival of the letter was orally intimated to the complainant’s mother. A written intimation could not be served at his residence as the mother of the addressee refused to give acquaintance for having been received the intimation. The delivery man was an outsider working on the place of regular GDSMD has taken back the article to the post office as per rules. Nevertheless, the complainant approached the post office or accepted delivery of the article, instead he pass up receipt of the article and took refuge on non serving of intimation by the delivery agent. There is no dereliction of duty or negligence on the part of the 2nd OP. The complainant was well aware of the penalty issued by MACT earlier and it was his bonfire duty to pay the penalty rather than putting blame on the delivery agent on flimsy reasons. The OPs are submitted that this application submitted by the complainant is devoid of merits, frivolous and vexatious. It is evident that the same is filed with the ulterior motive to drag the OPs, who are providing basic services to the society, under the law of the land. Hence it is prayed that the application may be dismissed with a caution to the complainant for his malign intention to misguide and mislead to this commission.
Complainant’s case is that the notice issued by the Motor Accident Claims Tribunal in OPMV 285/2013, against the complainant was not served to him by OP NO.1. This lead to an ex-parte proceedings against him in the said case. Further the notice in the execution petition of said case, entrusted to OP NO.2 was also not served to him. Complainant alleged that due to that the revenue recovery proceedings were initiated against him and he had to pay, Rs.1,41,877/-, to avoid revenue recovery in Chembilode village office. Hence the action of OPs amount to deficiency in service on the part of OPs 1 and 2.
Both sides led evidence. Complainant has filed his proof affidavit and documents. He has been examined as Pw1 and documents got marked as Ext.A1 to A18. OP 1 and 2 filed separate chief affidavit and was examined as Dws 1 and 2. No documents were marked on the side of OPs side. After that the learned counsel of complainant and the learned counsel of OPs1 and 2 argued the matter and the complainant’s counsel has filed written argument note also.
The points to be decided are
- Whether the case is barred by limitation?
- Whether OPs 1 and 2 were on duty on the alleged dates raised by the complainant?
- Whether there is any deficiency of service on the part of OPs?
- Relief and cost?
The 1st plea raised by the OPs is that the present complaint is barred by limitation. The contention raised by the OPs is that the particular registered letter RL76136072IW said to have been sent on 22/05/2012. Present case was filed on 19/10/2019. So there is limitation as the cause of action has arised on 22/05/2012.
The said contention of OPs 1 and 2 cannot be accepted. Because complainant pleaded that date 22/05/2012 as stated in the complaint and affidavit is a clerical mistake. The actual date is 22/05/2013. It is true that cause of action has a raised on 22/05/2013. But from the facts of the case and from the evidence ie Ext.A7 it is evident that the notice from MACT was issued on 22/05/2013 and the 2nd letter RL 996989985IN has been sent on 09/06/2017 and further the 2nd letter has been returned as unclaimed. Further the complainant has realized the return of the 1st letter and return of 2nd letter as unclaimed only on enquiry after getting revenue recovery proceedings from the Accident claims Tribunal. Hence from the above facts it is evident that there is continuous cause of action from 22/05/2013 onwards. Ext.A7 revealed that the complainant got the letter about the details of transaction only on 01/03/2019. So the case is not barred by limitation.
Another point to be decided is whether OPs 1 and 2 were on duty on the relevant period. OPs 1 and 2 admitted in the version that OP No.1 has entered into duty on 28/12/2012. Then OP No.1 has been working as post women during 22/05/2013 on which the 1st registered letter was issued from MACT. There is no case of OPs that the said registered article was delivered to the complainant. It is also a fact that the MACT case against the complainant has been decided as ex-parte order. In Ext.A7 reply letter given by postal department to complainant, it is informed that the 1st registered letter dated 22/05/2013 could not be traced out. Hence from the above said facts it is revealed that OP NO.1 had not delivered the said letter dated 22/05/2013 and it was returned to the tribunal. Further from Ext.A4 document it its clear the OP NO.2 was engaged in the duty in the same locality of the complainant. OP No.2 contended that the aged mother of the complainant refused to receive the postal article when it was delivered. So the said item was returned to sender. Complainant alleged the OP 2 could have given written intimation about the said letter to his aged mother. From t Ext.A7 also we can realize that the post woman informed about the arrival of the letter but the mother of complainant refused to give acquaintance for seeing intimation. In Ext.A7 the postal department clearly stated that there is lapse on the part of the delivery staff in not serving a written intimation even though the recipient refused sign and necessary action will be taken against the early official. Complainant alleged that OP NO.2 neither seen the complainant’s mother nor delivered the said item to the complainant. Hence through Ext.A7 itself, complainant has proved his case. So there is deficiency of service on the part of OPs 1 and 2. Since OPs 1 and 2 are the employee of OP NO.3, OP3 is also responsible for the deficient action of OPs 1 and 2. Hence points 2 and 3 are found in favour of complainant.
Here complainant has submitted sec.49 of the Indian Post office Act. Sec.49 clearly stated that penalty for misconduct of person employed to carry or delivery mail bags or postal articles:- whoever, being employed to carry or deliver any mail bag or any postal article in course of transmission by post. (d) does not use due care and diligence safely to covey or deliver any such mail bag or postal article as aforesaid
shall be punishable with fine which may extend to fifty rupees.
Further learned counsel of complainant submitted that whether OP NO.1 and 3 has the right to appoint OPNo.2 to work under them as a sub staff. No such document is seen produced by both of the OPs to show that they have appointed OP No.2 to work under them. If they have delegated such person to work under them, then it is their duty to take responsibility and to check whether the duty has been properly delivered to addressee and if any such misconduct occurs from t he side of postal official, it is a breach on statutory duty in the discharge of their function on behalf of the state. The state being the employer cannot avoid its responsibility for the willful wrong done by the employee to the members of the public.
Complainant has submitted decision of Hon’ble High court of Kerala (2001 ic051189) (2001(3)KLT 809) in which Hon’ble High Court held that when a postal official willfully or fraudulently does anything which results in the loss of damage, be commits breach of a statutory duty in the discharge of his function on behalf of the State. The State, being the employer, cannot avoid responsibility for the willful wrong done by the employee to the members of the public.
Here we can see that the both the letter pertaining to the original petition as well as in execution, were not delivered to the complainant. Hence there is dereliction of duty on the part of OPs 1 and 2. OPs 1 to 3 failed to prove their contention either documents or through other evidence.
In the result complaint is allowed in part. OPs 1 to 3 are directed to pay Rs.1,41,877/- to the complainant and also directed to pay Rs.10,000/- towards compensation for the mental agony and hardship caused to the complainant. Opposite parties are further directed to pay Rs.5,000/- towards cost f the proceedings. OPs 1 to 3 are jointly and directly liable to comply the order within one month from the date of receipt of this order. Failing which complainant is entitled to get the awarded amount 1,41,877/- with interest @9% per annum from the date of order till realization. Complainant is at liberty to realize the above amount as per provision in Consumer Protection Act 2019.
Exts
A1-Revenue recovery notice dated 07/08/2018(marked with objection)
A2-Tax receipt (subject proof)
A3- Copy of application from right to information dated 18/07/2019
A4- Reply to right information dated 14/08/2019
A5- Letter to the postal office
A6-Acknowledgement letter dated 19/09/2018
A7- Reply from postal department
A8- Lawyer notice
A9(series)- Postal receipt 2 in numbers
A10- Acknowledgment card dated 04/04/2019
A11-Acknowledgment card dated 05/04/2019
A12-Reply notice by OP1 and 2
A13- Certified copy of the summons issued by MACT Talassery dated 20/05/2013
A14- Summons issued by MACT Talassery dated 31/05/2017
A15- Certified copy of the registered cover dated 20/05/2013
A16- Certified copy of the registered cover dated 31/05/2017
A17-Acknowledgment card dated 22/05/2013
A18-Acknowledgment card dated 06/06/2017
Pw1- Complainant.
Dw1-OP1
Dw2-OP2
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
(mnp)
/Forward by order/
Assistant Registrar
