This present First Appeal Case No. 2 of 2020, in reference to Complaint Case No. 12 of 2018, coming before this Commission for disposal has originated from the referred Complaint case under reference filed under Section 12 of the Consumer Protection Act, 1986 against the above named Appellants (Respondents in Complaint Case No. 12 of 2018) by the present Respondent (Complainant in Complaint Case No. 12 of 2018).

2.          The case was partly heard on 22.07.2022 and finally heard at length on 08.08.2022 where Learned Counsels of both parties had advanced their respective submissions.

The present First Appeal case has been preferred by the above named Appellants under section 15 of the Consumer Protection Act, 1986 praying for setting aside the impugned Judgment and Order dated 06.01.2020 passed by the Learned District Consumer Disputes Redressal Forum, Imphal, Manipur, in Complaint Case No. 12 of 2018. For better appreciation of the present Appeal Case in hand, the brief fact of the Complaint Case No. 12 of 2018 are presented hereunder:-

CASE OF THE COMPLAINANT (THE PRESENT RESPONDENT)

  One female Sangeeta Chongtham known as Carzutta in Russia, who is a friend of the complainant, namely Mr. Thokchom Vivekchand Singh (the present Respondent) had sent the 14 items in a parcel from Russia by registered post on 26.07.2018 through Parcel No. (Fgn): CB016821689RU under the local custom duty being assigned no. S-07DT, having a total weight of about 11090 gms. (11.09 Kgs), after payment of Rs. 25,000/- (Rupees twenty-five thousands only) excluding the parcel charge. The items are-

TABLE 1

The parcel, containing the above mentioned items reached Mumbai and was further dispatched to Kolkata on 04.08.2018 under Parcel No. CF110003912405 which reached the Office of Superintendent of Foreign Post (Foreign Parcel, Import section), 12KS Roy Road, Kolkata-700001 on 07.08.2018. Upon receipt at the Kolkata Hub, the parcel being sent under Parcel No. (Fgn.): CB016821689RU under the local custom duty being assigned no. S-07DT, the Assistnat Superinten dent ( Foreign Parcel, Import Section), Kolkata had issued a Certificate dated 07.08.2018 after checking and verification and in this Certificate it was disclosed that on opening the parcel bag in the presence of customs officer, the parcel was found tampered in suspicious condition and contents were pilfered. Further it was reported that the parcel was received outwardly in torn condition with shortage in weight. Weight as per manifest is 11090 gms. However, the actual weight was found to be 9700 gms. Thereby a loss of weight 1390 gms was evident. The following items were found missing from the original parcel under no. (Fgn.): CB016821689RU:-

TABLE 2

After receipt of the parcel at Foreign Post (Foreign Parcel, (Import Section), Kolkata on 07.08.2018 under Registered Parcel No. CBW0005090067, the same was closed by INCCDC, Kolkata FPO in the name of the complainant (the present Respondent) on 10.08.2018 which reached the Imphal Head Post Office on 18.08.2018.

It has been pointed out and affirmed by the Authority of Postal department that the parcel reached at Kolkata on 07.08.2018 and after its opening for checking and verification was reclosed by the Foreign Parcel Import Section only on 10.08.2018 and possibilities of further loss of the contents of the parcel cannot be ruled out. Later, when the parcel reached Imphal Head Post Office on 18.08.2018, further loss of weight of 2660 gms. was reported at the time of receipt of the parcel, meaning that further loss of contents of the parcel occurred again. The Complainant (the present Respondent) was informed through telephone by the Postal branch, Imphal Head Office to collect his parcel that had reached Imphal Head Post Office on 18.08.2018. However, when the complainant (the present Respondent) came for the delivery of his parcel, it was found that the parcel had been cleaved out for about 12 inches at the bottom right corner. The Complainant (the present Respondent) thus, took the delivery of the parcel at around 11:00 a.m. of 20.08.2018 in which the following items were found missing from the original parcel being sent under Parcel No. (Fgn.): CB016821689RU:-

TABLE 3

CASE OF THE RESPONDENT (THE PRESENT APPELLANTS):

The present Appellants (Respondent in the Complaint Case) have admitted that upon checking and preparation of inventory when the parcel sent under Parcel no. (Fgn.): CB016821689RU was opened at Foreign Parcel Import section, Kolkata on 07.08.2018, loss of weight 1390 gms. (1.39 Kgs.)  was reported, that is the parcel received weight 9700 gms. (9.7 Kgs.) when the original parcel weight 11090 gms. (11.09 Kgs.). It is also been admitted that the parcel was lying unclosed and unattended at Foreign Parcel Import Section, Kolkata for two days after being opened on 07.08.2018 which was reclosed on 10.08.2018.

3.          Hence, the Complainant (the present Respondent) had filed the Complaint Case no. 12 of 2018 against the Respondents (the present Appellants) and the Learned District Consumer Disputes Redressal Forum, Imphal, Manipur had decreed vide Judgment and order dated 06.01.2020 in favour of the Complainant namely, Thokchom Vivekchand Singh (the present Respondent), directing the Respondents of the complaint case (the present Appellants) to pay a sum of Rs. 55,150/- (Rupees Fifty-five thousands one hundred fifty only) as compensation and cost of litigation within a period of one month from the date of passing of the order.

4.          The present Appellants have preferred the instant appeal case on the ground that the learned Forum had failed to appreciate provisions of law and facts while passing the impugned Judgment and order dated 06.01.2020 and that the direction to pay a sum of Rs. 55,150/- (Rupees Fifty-five thousands one hundred fifty only) was made in a mechanical way without assigning any reason. Further, the present Appellants have contended that the learned Forum overlooked the provisions of law laid down under Section 6 of the Indian Post Office Act, 1898 inasmuch as Section 6 of the Act gives complete immunity to the Government and officers of the Post Office from incurring any liability by reason of any such loss, mis-delivery, delay or damaged, unless he has caused the same fraudulently or by his willful act or default, in course of transmission by post. Further contention is made by the Appellants that the present Respondent namely, Thokchom Vivekchand Singh (the complainant of the Complaint case) is not a consumer within the meaning of “Consumer” given in the Consumer Protection Act, 1986 as he never utilized the service of Postal Authority of India, rather he is actually a Consumer of the Postal authority of Russia.

5.          The present Appellants have referred and cited the following Case laws to substantiate their contention advanced in their appeal case.

I.          The Post Master Imphal and Others –vs- Dr. Jamini Devi, Sagolband 2000(1)CPJ 28 – the relationship between the sender of a Postal Article and the Post Office is governed by the Indian Post Office Act and not by Law of Contract or Tort. There is no liability at all for loss or non-delivery of a postal article except in so far as specifically provided by the Statute under Section 33 and Section 6 or any other regulation or rule. Hence, no relief can be granted to a Complainant on the mere allegation of loss or non-delivery of the Postal Article. A postal employee may be made liable provided an action was brought against him and it was proved that he was guilty of fraud or willful act or default leading to the loss of the postal article or non-delivery thereof.          

II.         Indian Postal Department and Anr. –Vs- Omkar Singh, 2004(4) CPJ 161 – there is no allegation in the compliant that the cloths sent by parcel were lost due to any fraudulent act or willful default of any other Official of the Post Office. Unless such allegation are made and proved by the Complainant he cannot get any relief by way of compensation for loss, mis-delivery, delay or damage to any postal article in the course of its transmission, in the matter unless there such allegation are made and proved.

III.        Dr. S. Saravanan –vs- The Director General of Post and Anr. – The first part of the section exonerates the Government form any liability for loss, mis-delivery, delay or damage to the postal articles except so far as such liability is under taken by the Central Government by Express course. It is not the case of the Complainant that any such liability has been under taken by the Government and hence no claim against the Government is sustainable. The second part of Section exonerates the officers of the Post Office from any liability unless the delay or damage was caused fraudulently or by his willful act or default. No such allegation has been made in the complaint. Section 6 of the Indian Post Office Act is therefore a bar to the maintainability of this complaint.

6.          On the other hand, the present Respondent, Mr. Thokchom Vivekchand Singh has taken recourse to the case law of Senior Superintendent of Post –vs- Manjit Kaur Sodhi, announced on 13th April, 2012 – In a number of cases, we have noticed that the Postal Department has been taking shelter under the Provisions of Section 6 of the Indian Postal Act which were enacted as far back as 1898 when the then Government of the day acquired total immunity for any action of the Postal department resulting in a loss to the Consumer……………………………………………………………………………………. This provision made in 1898 in the Indian Postal Act, it is totally antiquated and out of tune with the spirit of a democratic government in a Parliamentary system where the action of the Government functionaries are subject to scrutiny and all such functionaries are accountable…………………...................

OBSERVATION:

7.          It is an admitted fact of the both the parties, the present appellants and the present respondent, that loss of items listed table-3 had occurred from the parcel being sent under no. (Fgn.): CB016821689RU, sent from Russia by one female Sangeeta Chongtham known as Carzutta meant to be delivered to the present Respondent namely, Mr. Thokchom Vivekchand Singh. The loss of the item occurred while the parcel was in transit form Russia-Mumbai-Kolkata-Imphal, with the first loss detected and reported when the parcel reached Kolkata Postal Hub on 07.08.2018. This fact has been supported by the Certificate dated 07.08.2018 of the Superintendent, Foreign Post (Foreign Parcel, Import Section), Kolkata, wherein the weight of the parcel received was found to be 9.7 kgs. When the actual weight of the parcel was 11.09 kgs. Further, loss of 2.66 kgs. was detected when the parcel reached Imphal Postal Hub on 18.08.2018. It is also pertinent to note, with the fact being admitted by the present appellants, that the parcel, after it reached Kolkata Postal Hub on 07.08.2018, was kept unclosed and unattended for two days, after it was being reclosed only on 10.08.2018. At this juncture, we are of the opinion that willful negligence on the part of the officials of the Kolkata Postal Hub had occurred, which had resulted in the loss of the items. Here, mention is also to be made that the premises of the Postal Hub (be it for Mumbai or Kolkata or Imphal) is restricted area, accessible by the staffs and officials of the Indian Postal Authority and none else. We are also of the view that since the appellants did not raise the plea of defect of parities in their written statement before the Learned District Forum, Imphal, it would not be proper to raise such plea before the Appellate Forum. It is pertinent to mention that the appellants at Para No. 10 of the written statement file before the District Forum, Imphal stated that “as the matter is of an abstraction, the case had been re-opened. Again as the matter involves at various stages of inquiry, viz, at Kolkata, Mumbai and Foreign Postal counterpart (Russia), the undersigned earnestly pray for allowing 30 days time for completion of the inquiry”.  These averments are in reply to the allegations of the complainant as stated at Para No. 10 of the complaint. In view of the above statement in their written statement in the form of admission, the case of abstraction of the items of the parcel has been made out by the complainant.

Again it is the averment (Para No. 5 of the complaint) that the parcel reached Imphal Head Post Office on 18.08.2018 where the complainant had been apprised that the Parcel appeared to have cleaved for about 12 inches at the bottom right corner and contents have been tempered before it reached Imphal Head Post Office, if wanted it can take delivery without making any complaint because of being Saturday. But the complainant refused to take the delivery without filing complaint for the pilferage and postponed the delivery till 20.08.2018.

“Such averment of the complainant that parcel appear to have cleaved for about 12 inches at the bottom right corner and contents have been tempered” was not denied by the appellants in their written statement at Para No.5 of written statement. It may also be noted that at Para No. 6 of the written statement the parcel was received by Imphal Head Post Office in open and torn condition with the bottom right corner of the parcel cleaved for about 12 inches.

Examination of pleadings of the parties would inspire that the allegations of fraud, willful act, default on the part of respondents had been proved by the respondents in as much as it is settled that admitted facts need not be proved. On the other hand no circumstance has been brought on record by the appellants to show that there has not been any willful act or default on the part of any of their officers. In the result we are constrained to hold that the case laws relied upon by the appellants would not support his case and would not be applicable in the present case. 

The facts and circumstances observed above only point out that liability is to be imposed upon the Indian Postal authority and it cannot be simply negated that they (officials of the Indian Postal Authority) cannot be held accountable for any loss, delay, mis-delivery or damage to items sent through postal service. This Commission has to bring forward the fact that Indian Postal authority comes within the meaning of ‘State’ as enshrined under Article 12 of the Constitution of India and it is thus a bounded duty to serve the general public and they cannot remain aloof from any accountability or liability arising out of any misconduct or mistake. Though, it has been laid down that section 6 of the Indian Postal Act provides immunity to the Indian Postal Authority from imposing any liability arising out of any misconduct or mistake. Though, it has been laid down that Section 6 of the Indian Postal Act provides immunity to the Indian Postal Authority from imposing any liability on account of loss, delay, mis-delivery or damage of items sent through Indian Postal Service. The question that needs to be addressed at this point is – “If any loss has occurred to any person who is meant to be the end recipient of items/parcels sent using the service of Indian Postal Authority, and if the Indian Postal Authority lifts their hands up on the ground that they cannot be held liable or unaccountable, as provided by Section 6 of the Act, then who shall take the responsibility and who shall compensate for any loss or damage arising out of any mistake or misconduct?”

              The contention that Indian Postal act is not governed by any provision of Tort or Contract cannot be simply taken on the basis of its face value. India is a democratic country and governance is incomplete without proper administration of justice of all kinds. Postal service is a service to humanity and in a deeper meaning, it is a part and parcel of human rights. No one shall tamper and touch the sealed packages as soon as it registered for dispatches. Hence, the fact that the present Respondent Mr. Thokchom Vivekchand Singh has suffered loss cannot be left alone without addressing the issue of “who has caused the loss and how has the loss has been caused?” The implied meaning as envisaged by Section 6 of the Indian Postal Act can be assessed as – Exemption from liability for loss, mis-delivery, delay or damage.

The Government shall not incur any liability by reason of the 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 undertaken by the Central Government as hereinafter provided; and no officer of the Post Office shall incur any liability by reason of any such loss, mis-delivery, delay or damage, unless he has caused the same fraudulently or by his willful act or default.

Section 6 has provided ……………. unless he has caused the same fraudulently or by his willful act or default. In the present Appeal Case in hand, the loss of the items in TABLE -3 has resulted not from any unnatural cause or event but due to willful negligence or default on the part of Indian Postal Authority. The legal maxim Res ipsa loquitor, meaning “things speak for itself” has to be inferred from the facts and circumstances of the present case. It is thus evidently to be held that the above named Appellants are liable for the loss suffered by the present respondent Mr. Thokchom Vivekchand Singh.

8.          With regard to the issue of “whether the present Respondent can be called a Consumer of the Indian Postal Service?” is to be carefully scrutinized after minute and in-depth examinations of the definition of Consumer as provided in the Section 2 of the Consumer Protection Act, 1986 and 2019 – “Consumer” means any person who –

“Hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose.”

              If we carefully examine the definition, the present respondent is indeed a customer of the Indian Postal Service because he has availed the service of the Indian Postal Authority as a beneficiary, he being the end recipient of the sent items, being sent under no. (Fgn.): CB016821689RU and finally received at the Imphal Postal Hub under Registration No. CDM003912405 on 18.08.2018. The service being availed by the present Respondent as a beneficiary is on account of the payment made by the said Sangeeta Chongtham alias Carzutta of Russia for the delivery of the items under Table -1 after due payment of an amount of Rs. 25,000/- excluding the parcel charge. Hence, the matter as to whether the present respondent is a customer of the Indian Postal Service or not is to be ascertained in the affirmative. 

9.          For the reasons cited above, the present First appeal Case no. 2 of 2020 is found devoid of merit any for and accordingly, the Judgment and Order dated 06.01.2020 passed by the learned Consumer Disputes Redressal forum, Imphal, Manipur is hereby upheld and the present First Appeal Case no. 2 of 2020 is hereby disposed of with the direction that the appellants make the payment of the Compensation amount decided vide Judgment and Order dated 06.01.2020 of Complaint Case No. 12 of 2018, within a period of thirty days from the date of passing of this Judgment and Order, with further direction that in the event of failure to pay the compensation amount, interest calculated on the principal compensation amount at the rate of 9 % per annum shall be paid to the present Respondent namely, Mr. Thokchom Vivekchand Singh, until realization of the compensation amount.

10. Let a copy of this order be provided to all the parties free of cost. The order be also uploaded forthwith on the website of the commission for the perusal of the parties.

11. Send the case records of Complaint Case No. 12 of 2018 to the Consumer Dristrict Redressal Commission, Imphal along with a copy of this order for information and compliance.

12. File be consigned to record room along with a copy of this order