Haryana

StateCommission

A/404/2015

POST MASTER - Complainant(s)

Versus

SUBHENDER KUMAR SINGH - Opp.Party(s)

R.P.SINGH

23 Nov 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :      404 of 2015

Date of Institution:      01.05.2015

Date of Decision :       23.11.2015

 

1. Post Master, Dharuhera, Tehsil and District Rewari.
2. Post Master, Main Post Office, Rewari.
3. Director Postal Services, Gurgaon.

                                      Appellants/Opposite Party

Versus

 

Subhendra Kumar Singh minor son of Shri Shailender Kumar Singh, minor through his father Shri Shailender Kumar Singh, as a natural guardian, Resident of House No.234, Housing Board Colony, Dharuhera, District Rewari. 

                                      Respondent/Complainant

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Mr. B.M. Bedi, Judicial Member.

                                                                                                         

Present:               Shri R.P. Singh, Advocate for appellants.

Shri Shailender Kumar Singh-father of complainant in person.

 

                                                   O R D E R

 

B.M. BEDI, JUDICIAL MEMBER

 

Post Master, Dharuhera and others-Opposite Parties, are in appeal against the order dated August 26^th, 2014, passed by District Consumer Disputes Redressal Forum, Rewari (for short ‘District Forum’) in Consumer Complaint No.168 of 2011.

2.      Subhender Kumar Singh-Complainant/respondent applied to Board of Technical Education Rajasthan, Jodhpur to appear in Rajasthan Pre-Engineering Test (for short ‘RPET’). He sent his application through Speed Post contained in envelope on April 5^th, 2010 vide receipt Exhibit C-4 issued by Post Master, Dharuhera/Opposite Party No.1 against payment of Rs.27/- as postal charges. Closing Date for receipt of the applications in the office of Board of Technical Education Rajasthan, Jodhpur, was April 10^th, 2010. But the above said postal article was not delivered at the destination and lost in transit. Resultantly, the complainant was deprived of the test to get admission in engineering college on account of negligence and deficiency in service on the part of the Postal Authorities. Hence, complaint under Section 12 of the Consumer Protection Act, 1986 was filed before the District Forum.   

3.      The complaint was contested by the appellants-opposite parties by filing reply.  It was stated that the bag containing postal article of the complainant was lost in transit for which F.I.R. was lodged at Police Station, Model Town, Rewari. Section 6 of the Indian Post Office Act, 1898 (for short ‘Section 6 of the Act, 1898), exempts Post Office 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. Denying the claim of the complainant, it was prayed that the complaint merited dismissal.

4.      The District Forum vide impugned order accepted the complaint and issued direction to the opposite parties/appellants as under:-

“….this complaint is allowed directing the opposite parties to pay the postal charges of Rs.27/- to the complainant besides paying compensation of Rs.10,000/- and litigation expenses of Rs.1100/-. The compliance of this order be made within one month from the date of receipt of the copy of this order failing which all the awarded amount shall fetch interest @ 9% p.a. from the date of filing of the complaint till payment.”

 5.     Learned counsel for the appellants urged that no claim will lie against the Postal Department or its officers merely on the ground that there has been loss, misdelivery, delay or damage to any Postal article in the course of transmission by the Postal Department unless the same has been caused fraudulently by the officer of the Post Office or by his willful act or any default.  In support, reference was made to Section 6 of the Act, 1898, reproduced as under:-

“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 willful act or default.”

6.      The contention raised is baseless. In Sub Post Master, Post Office, Nawanshahr and another versus Sahib Singh, 2010 CTJ 816 (CP) (SCDRC) State Consumer Disputes Redressal Commission, Punjab, Chandigarh held as under:-

“12.   Now the question is whether the wilful act and wilful default on the part of the appellants is proved or not. In this context, reference may be made to the judgment of the Hon’ble Tamil Nadu State Commission, Chennai reported as ‘Post Master, Krishnagiri Post Office & Anr. V. P.Pasupathi II (2003) CPJ 508’. It was also a case in which the money order sent by it was not received by the addressee nor it was received back by the sender. It was considered in the judgment as to in which circumstances the exception to Section 6 shall apply.

“16.   The moot question that arises for consideration in the light of the legal provisions as stated above is as to whether there is any material placed on record pointing out the practice of fraud or wilful 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 on such aspects of the matter which is required to mulct liability either on the Government or any officer of the Post Office in question.

17.    The general rule is that as and when any person likes the complainant coming forward with a complaint alleging the practice of fraud or wilful 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.

18.    Such a general rule is not without any exception…………………………………..The complainant cannot at all be expected to have any sort of a knowledge as relatable to further acts done by the opposite parties 1 and 2 in the dispatch of the money order form and other related matters so as to see that the payment under the money order form was to be duly effected to the addressee.  It is incumbent for the opposite parties 1 and 2 to give particulars or other details as to in what manner they have effected the dispatch of the money order form from that Post Office to the post office of the addressee enabling the Post Office of the addressee to effect payment of the money order by the personnel of the Post Office to the addressee inasmuch as those matters are exclusively within the personal knowledge of the opposite parties 1 and 2.

19.    Relevant at this juncture to refer to the sanguine provisions as adumbrated under Section 106 of the Indian Evidence Act, 1872 (for short, “the Act, 1872”). The said Section deals with burden of proving fact especially within knowledge. The Section reads as under:

(a)     When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

(b)     A is charged with traveling on a railway without ticket. The burden of proving that he had a ticket is on him.

20.    On the fact of Section 106 of the Act, 1872, it goes without saying that the opposite parties 1 and 2 must have to divulge all information within their exclusive knowledge as relatable to the dispatch of the money order form to the addressee Post Office and other relevant details thereto for making the payment of the money due under the money order to the addressee started therein. In the case in hand, there is total absence of proof on the part of the opposite parties 1 and 2 on such aspect of the matter. Such being the case, we rather feel, that we are not far wrong in stating that we are entitled to draw an adverse inference under Section 114(g) of the Act, 1872 which prescribes that the evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. Such being the case, we are of the view that a legitimate inference could be drawn on the facts and in the circumstances of the case that either a fraud or wilful act or default had been committed by the opposite parties 1 and 2 which resulted in not effecting the payment of money due under the telegraphic money order sent by the complainant to the payee without any loss of time.”

7.      In Speed Post Customer Care Centre, Kolkata and others versus Niranjan Sahoo, 2010 CTJ 78 (CP) (SCDRC), State Consumer Disputes Redressal Commission, Tripura, Agartala held as under:-

“15.   The Postal Authorities also tried to take shelter under rules 66-B of the Indian Post Office (first amendment) Rules 1999 which provides that in case of delay in delivery of domestic post articles beyond the norms, determined by the department of post from time to time, the compensation to be provided shall be equal to the composite-speed post charges paid and in the event of loss of domestic speed post articles or loss of its contents or damage to the contents, compensation shall be double the amount of composite speed post charges paid or Rs.1,000/- whichever is less.

16.    We are of the opinion that the Govt. of India framed these 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 cases.”

8.      In the instant case there is nothing on the record to show that the postal authorities had conducted any inquiry and any delinquent official of the postal department was penalized for the same. Even the appellants/opposite parties have failed to produce on the record the copy of the F.I.R. which was allegedly lodged. So, under the facts and circumstances of the case the appellants/opposite parties cannot be allowed to take shelter of Section 6 of the Indian Post Office Act, 1898 and the provisions of the Indian Post Office Rules 1933 and Rule 66B of the Post Office Act and as such the deficiency in service of the opposite parties in the instant case is not to be over sighted.

9.      In view of this, no case for interference in the impugned order is made out.  Hence, the appeal is dismissed.

10.    The statutory amount of Rs.7608/- deposited at the time of filing the appeal be refunded to the complainant against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

 

Announced 23.11.2015

(B.M. Bedi) Judicial Member

(Nawab Singh) President

 

CL