By Smt. C. S. Sulekha Beevi, President,

1. Complainant who is represented by the power of attorney holder is aggrieved by the non-delivery of a letter send by post. It is his case that in response to his application for the vacancies to the post of Village Extension Officer in the Block Development Offices of Malappuram District, the hall ticket/admission ticket to appear for the written test was send on 07-11-2008 from Malappuram Collectorate. The written test was scheduled to be conducted on 23-11-2008 at M.S.P. Higher Secondary School, Malappuram. Complainant did not receive the hall ticket and therefore could not appear for the exam. The other applicants appeared for the exam. Enquiries made with first opposite party revealed that the hall ticket/letter send from Malappuram Collectorate had reached opposite party post office on 12-11-2008. It was left at the office of first opposite party without delivering to the complainant. On 27-12-2008 the brother of the complainant approached first opposite party post office and then the letter was delivered to him affixing the delivery seal as 27-12-2008. He alleges that the letter was not delivered only due to negligence on the part of opposite party. Complainant issued a lawyer notice demanding to pay compensation to which opposite parties responded raising untenable contentions. It is stated that the other applicants who appeared for the written test got appointment in the vacancies and the scale of pay of the post is Rs.5650-Rs.8790. That complainant lost his opportunity of job due tot he non-delivery of the letter. Alleging deficiency in service complainant claims Rs.1,00,000/- as compensation.

2. Second opposite party filed version on behalf of himself and first opposite party. Opposite parties admit that the alleged letter was received at the post office of first opposite party on 12-11-2008, and also that it was delivered on 27-12-2008 when the brother of the complainant approached first opposite party. It is submitted that Sri.Satheesan, working as postman in first opposite party post office was on medical leave from 10-10-2008 to 06-01-2009. Outsiders had to be engaged as substitutes to maintain the service. The approved procedure in the case of absence of postmen is to engage substitutes who are outsiders and they are paid daily wages. No action against them can be taken by the Department in case of any deficiency committed by them. Even though the sub post master and other staff members make efforts to deliver as many articles as possible, some remain undelivered due to incomplete address. The alleged letter also was left undelivered due to incomplete address. The letter was addressed as ’Mohamed Shafi.M., S/o Moideenkutty, Mundekkatil(H), B.P. Angadi(PO) 676102’. That the address was not supplemented by anything like name of locality, name of the road, or any landmark area. That the address shown in the complaint is ’Mohamed Shafi, S/o Moideenkutty, Mundekkat House, Thalakkad Amsom, B.P. Angadi Desom, (PO) B.P. Angadi, 676102’. That the delay in delivery was partly due to incomplete address also. That the department handles about 6700 million postal articles. Some times due to shortage of delivery staff and absence on account of sudden illness the f efficiency in delivery is adversely affected. That if the department is made liable for each and every delay it will lead to disastrous consequences of burdening the Government with liability. That Sec.6 of the Indian Post Office Act, 1898 gives absolute immunity from action in delay, misdelivery, loss and damage. That the delay in the instant case was not caused fraudulently or by wilful act or default. It is further submitted that the contention of the complainant that other candidates who appeared for the exam got appointment to the post and that complainant lost the chance of appointment and chance of earning huge salary is denied as baseless and not credible. That the complainant is not entitled to any reliefs.

3. Evidence consists of the proof affidavit filed by complainant and Exts.A1 to A6 marked for him. Second opposite party filed counter affidavit on behalf of both opposite parties and Exts.B1 and B2 marked for opposite parties.

4. Points for consideration:-

(i) Whether opposite parties are deficient in service.

(ii) If so, reliefs and costs.

 

5. Point (i):-

The undisputed facts of this case are (i) that the alleged letter had reached first opposite party post office on 12-11-2008. (ii) The letter was left at opposite party post office undelivered till 27-12-2008. (iii) The letter was delivered on 27-12-2008 only when the brother of the complainant approached opposite party post office and made a complaint of non-delivery of letter.

6. The letter is produced by complainant and marked as Ext.A1. On perusal of Ext.A1 it is an admission ticket to appear for the written test conducted on 23-11-2008 for selection of appointment to the post of village Extension Officer. The impressions of seal seen on Ext.A1 shows that the letter was send from Malappuram Collectorate on 07-11-2008 and that it was received at first opposite party post office on 12-11-2008. The impression of delivery seal shows that the letter was delivered to the addressee only 27-11-2008. It is evident that the letter reached first opposite party post office 11 days prior to the date of written test. If it had been delivered within a day or two the complainant could have appeared for the exam. Opposite party does not have a case that complainant is not residing within the delivery area of first opposite party post office. The letter was delivered after a delay of 1½ months, and that too only after a complaint was made about the non-delivery. It was urged on behalf of the complainant, that the letter was not delivered within time and thus he was prevented from writing the exam. It is also submitted that the letter which is an admission ticket which was delivered with delay, after the date of exam, had become purposeless and in effect was equal to non-delivery of the letter amounting to deficiency in service.

7. In para 7 of the counter affidavit opposite party has specifically admitted the delay in delivery of the letter. Admitting the delay, the contention raised by opposite parties is that such omission will not amount to deficiency in service by which the complainant can claim compensation. Upon the pleadings, evidence and submissions made at the time of hearing the defense raised by opposite parties are four fold:

(i) That Sri. Satheesan P. who was the postman working at first opposite party post office (B.P. Angadi post office) was on medical leave to undergo surgery for nephrological ailments. Outsiders were appointed as substitutes as is the practice adopted in postal department. These outsiders are paid daily wages and no action can be taken for any deficiency committed by them.

(ii) That the address in Ext.A1 letter was incomplete and this delayed the delivery.

(iii) That the complainant was abroad at the relevant time during which the letter was send and delivered and that there was no chance of him to appear for the exam.

(iv) That section 6 of Indian Post Office Act, 1898 grants statutory immunity.

 

8. Now we proceed to analyse each of the above contentions raised by opposite parties.

9. To substantiate the contention that the postman Sri. Satheesan was on medical leave opposite party has produced Ext.B1 and Ext.B2 which are documents relating to his leave applications. These documents reveal that Sri. Satheesan had taken leave from 01-10-2008 to 08-11-2008 and again from 09-11-2008 to 07-01-2009. In Ext.B1(a) it is also seen stated that in the place of Sri. Satheesan, another person, Sri. Rahul Sai was appointed as substitute to officiate as postman of B.P. Angadi Post Office for the period 08-11-2008 to 31-11-2008, which is the relevant period during which Ext.A1 letter had reached the post office and ought to have been delivered tot he complainant. Thus it is seen that a substitute was working as postman to maintain the service without interruption. In our opinion even if there is a temporary absence of an employee in a governmental office it cannot be a ground for discharging the service in a deficient manner. There is a delay of more than one month to deliver the letter. It has also to be borne in mind that if the brother of the complainant did not approach first opposite party and did not make a complaint the chances are that the letter would never have been delivered at all. Considering this aspect and the number of days of delay the omission is not an omission simpliciter. Further Ext.A1 letter is send under Certificate of post on India Government Service. It also bears the round seal of the Government Office (office of the Assistant Development Commissioner, Malappuram) from which it was send. From the appearance itself Ext.A1 letter will gain importance being a communication from a government office. A reasonable man, guided by ordinary considerations, cannot consider such letter in par with a letter send by an ordinary citizen. Even then opposite party has left the letter unattended and undelivered. First opposite party herein who is the office head of the post office is responsible to see that work is carried out in the office properly. If no action can be taken against outsiders who are appointed as substitutes, the only remedy is to increase the vigil and supervision, so that there arises no cause for complain. It is rather extraordinary to admit that there is a delay and omission to deliver the letter within time and that it was due to overwork and being understaffed. Such an explanation is too puerile to be entertained.

10. The second contention raised by opposite party is that the address on Ext.A1 letter was incomplete. It was submitted on behalf of the complainant that the address on Ext.A1 was furnished by him at the time of sending the application and it is his full and correct address which he has been using for the past many years in all his communications. On perusal of Ext.A1 letter we do not see any endorsements made upon Ext.A1 so as to indicate that attempt was made to deliver the letter but such attempt had failed due to the address being incomplete. This together with the admitted fact that the letter was delivered by hand to the brother of the complainant without making any challenge as to identity establishes the falsity of the contention raised by opposite party.

11. It is the further contention of opposite parties that at the relevant time when Ext.A1 letter was send from the Government office and at the time when it was received at first opposite party office, as well as at the time of filing this complaint, the complainant was abroad and that therefore he cannot put forward a claim for deficiency in service. Against this it is averred, affirmed and submitted on behalf of complainant that had the letter been delivered he would have been intimated by his family and would have come to India and appeared for the exam. This contention of the opposite party is wholly untenable and does not need further discussion since opposite party is bound to deliver the letter to the addressee, being an ordinary letter, at his residence. Any shortcoming is deficiency.

12. The fourth submission on the side of opposite party is to unfold the imbrella of immunity granted under Section 6 of the Indian Post Office Act, 1898. The Section reads as under:

"Section 6. Exemption from liability for loss, misdelivery, delay or damage:- The (Government) shall not incur any liability by reason of the loss, misdelivery 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 be 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, misdelivery, delay or damage, unless he has caused the same fraudulently or by his wilful act or default."

The above section exempts from liability resulting from loss, mis-delivery, delay or damage of any postal article in course of transmission by post. In the instant case, the letter was kept undelivered. It was delivered after the date of the exam rendering the communication totally purposeless. Further it was delivered only when the brother of the complainant approached opposite party and made a complaint about non-delivery. At the cost of repetition, it has to be stated that if no complaint or enquiry was made from the side of the addressee, the chances are that the letter would not have been delivered. In effect, in our view, it amounts to non-delivery of a letter and is not covered by Sec.6 of the Indian Post Office Act. The complainant has pleaded that the letter was not delivered due to the negligence on the part of opposite parties. In Ext.A2 notice the complainant has specifically averred that the letter was kept undelivered in the custody of opposite parties due to negligence on the part of opposite parties. Ext.A1 letter was not lost. It was kept in the custody of opposite parties without delivering. Opposite party very well knew that the letter has to be delivered to the addressee. The non-delivery within time in such circumstances is nothing but wilful act and default. On such score, the immunity provided under Sec.6 of the Indian Post Office Act cannot be extended tot he instant case. From the above discussions we are able to conclude that opposite party has committed deficiency in service. Second opposite party is vicariously liable. We find both opposite parties deficient in service.

13. Point (ii):-

Complainant claims for compensation to the tune of Rs.1,00,000/-. In our opinion this amount is highly inflated. The claim of the complainant that if he had appeared for the exam, he would have been appointed to the post and that he would be able to draw huge salary and earnings is highly speculative and only to be disregarded. In our view, the compensation awarded in such cases should not only be a solace to the complainant for the wrong suffered by him, but should also serve to correct and improve the quality of service rendered in such Governmental officer. We consider that an amount of Rs.6,000/- together with cost of Rs.1,000/- would meet the ends of justice.

14. In the result, we partly allow the complaint and order that first and second opposite parties are jointly and severally liable to pay Rs.6,000/- (Rupees Six thousand only) as compensation to the complainant together with costs of Rs.1,000/- (Rupees One thousand only) within one month from the date of receipt of copy of this order.

Dated this 5th day of January, 2010.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER

APPENDIX

Witness examined on the side of the complainant : Nil

Documents marked on the side of the complainant : Ext.A1 to A6

Ext.A1 : Memmo dated, 07-11-2008 from Collectorate, Malappuram to complainant.

Ext.A2 : Registered Lawyer notice dated, 01-7-2009 by complainant’s counsel to first opposite party.

Ext.A3 : Postal acknowledgement card from first opposite party to complainant.

Ext.A4 : Reply letter dated, 06-01-2009 from first opposite party to complainant.

Ext.A5 : Letter dated, 09-3-2009 from second opposite party to complainant.

Ext.A6 : Power to Attorney.

Witness examined on the side of the opposite parties : Nil

Documents marked on the side of the opposite parties : Ext.B1 and B2

Ext.B1 (a to c) : Documents relating to leave application from 09-11-2008 to 07-01-2009 of Sri.Satheesan

Ext.B2 : Documents relating to leave application from 10-10-2008 to 08-11-2008 of Sri.Satheesan

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER