D o.F : 23-01-2010 D. o.O : 30-10-2010 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD C.C. 16/2010 Dated this, the 30th day of October 2010 PRESENT SRI.K.T.SIDHIQ : PRESIDENT SMT.P.RAMADEVI : MEMBER S.A.Wahab, Mehboob Service Station, Indian Oil Dealers, N.H.17, Uppala Po, : Complainant Kasaragod (Adv.A.Balakrishnan Nair, Kasaragod) The Superintendent of Post offices : opposite party Postal Division,Kasaragod. (in person) ORDER SRI.K.T.SIDHIQ : PRESIDENT Briefly stated: The case of complainant is that the registered parcel under speed post sent from Kasaragod Post office on 18/7/2009 addressed to the DGM Indian Oil Corporation Bangalore is returned undelivered to the complainant on 24/7/09 stating that addressee refused to accept it due to late receipt of tender. According to complainant the opposite party was very irregular in sending the postal articles and because of their deficiency in service complainant could not participate in the tender and lost his opportunity and thereby sustained heavy loss. He estimate his loss at ` 2,00,000/-. 2. Opposite party filed version. According to opposite party complaint is bad for non-joinder of Union of India in the party array. On merits it is the case of opposite party that complainant had sent the speed post article from Kasaragod HPO on 18/7/09 to the DGM(O) Indian Oil Corporation Bangalore 560052. There was some delay in transit and the article was taken for delivery to the addressee only on 24/7/09. The addressee refused to accept the article and so it was delivered back to the sender on 27/7/2009. As there had been delay ` 61/- being the composite speed post charges was ordered by the opposite party to be refunded to the complainant in memo No.CRF 2/5-11/09-10 dtd5/2/2010 in accordance with statutory provisions. However, the complainant has not taken payment of the amount. Even though the complainant avers that the article had contained a tender the fact remains that the postal department cannot be made responsible for the contents of the article, as the article had not been insured. If the complainant had attached much value to the document there was no reason as to why he had failed to make some special arrangements to transmit the document. On the other hand ,opposite party did not have any option not to accept the article from the complainant. It is admitted that there was some delay on the part of the department. Such delay may not be likened or compared with the service rendered by private courier services, which are run on commercial basis. The postal department is under the Universal service obligation suffers heavy losses in its efforts to fulfill the above said obligation. The department handles 6700 million postal articles in a year. At frequent intervals RMS units are inundated with hundreds of bags containing magazines. Due to this, bags are some times miscarried or over carried, thereby causing delay or even loss. If the department is made liable for each and every case of delay or loss such a situation will lead to perilous and disastrous consequences. No government can bear the brunt of such a liability. It is against the above said back ground the legislature as a matter of policy has given the central govt. absolute immunity from action in damages or loss by Sec.6 of the Indian Post Office Act 1898. As per the said section the govt. is exempted from any liability for loss, misdelivery or delay if 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 government and no officer of the post office shall incur any liability for any such loss, misdelivery or delay or damage unless he has caused the same fraudulently or by his willful act or default and the complainant has no such case that delay in delivery of his speed post article is occurred due to any such act. Transmission of postal articles is regulated by Indian Post Office Rules 1933 as amended from time to time. As per 66B of the said rules compensation for any delay of domestic speed post articles beyond the norms determined by the postal department shall be equal to the composite speed post charges collected. As such, complainant is entitled for 61/- only. The Consumer Protection Act provides additional means of obtaining a remedy by a consumer but if the remedy is barred under any other law, then such a remedy cannot be granted. The postal department has to stay within the statutory immunity granted by the legislature under the Indian Post Office Act or cannot go beyond what is statutorily fixed. Hence the opposite parties are not liable to pay any compensation and the complaint is therefore liable to be dismissed. 3.Complainant filed affidavit. Exts.A1 to A5 marked. Complainant cross-examined by opposite party. On the side of opposite party Exts.B1 to B3 marked. Both sides heard. Documents perused. 4. The specific case of complainant is that the opposite party was very irregular in sending the postal articles and because of their delay and deficiency in service he could not participate in the tender and thereby sustained loss. In his affidavit he has stated that opposite party was won over by some interested persons participated in the tender and purposefully delayed the delivery of the parcel sent by him. According to him he sent the parcel under speed post from opposite party/post office on 18/7/2009 to the DGM Indian Oil Corporation Bangalore. The contends of the parcel is clearly printed on the cover itself. It was a tender for the road transportation of Bulk Petroleum Products. The last date of receipt of the tender was on 23/7/09 10.30 A.M. Eventhough the said parcel by speed post was sent on 18/7/09 itself. It reached the addressee only on 24/7/09 13.00 hrs and hence the addressee refused to accept it since the last date of submission of the tender was already over. 5. Ext.A1 is the parcel containing the tender. The size of the parcel cover is 45X36cm. The photograph of Ext.A2 is shown in the next page
Apparently on a first look itself it is easily perceivable that the parcel is a tender for road transportation of Bulk petroleum products in the Mangalore location. It is also easy to know who is the tenderer. Therefore the case of complainant that knowing the contents of the parcel someone who is also interested in the same deal had won over the opposite party and purposefully delayed the delivery of the parcel sent by him cannot be ruled out. 6. Admittedly complainant had sent the speed post article from Kasaragod HPO on 18/7/09 to the DGM (O) of I.O.C Bangalore. According to opposite party there was some delay in transit and the article was taken for delivery to the addressee only on 24/7/09. Since the addressee refused to accept the article it was delivered back to the sender on 27/7/09. 7. But except the evasive statement that there was some delay. How the delay occurred? Where was the delay? Why it is caused? What was the reason for the delay? What are the proceedings initiated against the wrongdoer who caused delay etc are not explained to rule out the case of the complainant. The opposite parties have no case that they have made any enquiry in the said matter. The evasive statement and response itself casts serious suspicion about the propriety of the opposite party. Had they been genuinely interested to find out and submit the cause for the delay, and then they would have tracked the route of the parcel that consigned from HPO Kasaragod on 18/7/09 to till date of refusal by the addressee. The Govt. of India is spending crores of rupees from exchequer for maintaining the employees and the Postal Department though the return is very much less than the expenditure. The importance of the postal department in this age of information technology is diminishing day by day. That being so the postal employees should have been more dutiful, cautious and vigilant to do their time bound services. Evidently after committing grave deficiency in their service stating that the customer would have made alternative arrangement to transmit the document if he is considering it as important is nothing but an arrogant statement especially when the opposite parties have no case that they have intimated the complainant that about the delay in delivery of the speed post article. 8. It is pertinent to mention that the speed post article refused by the addressee on 24/7/09 which was sent on 18/7/09 took 6 days to reach at the destination. At the same time it returned back and reached at the hands of the complainant on 27/7/09 ie within 3 days. This fact further makes it clear that some one had fail played to cause delay of the delivery of the speed post article to the addressee. 9. The contention of opposite party that Union of India is a necessary party to the proceedings is not sustainable since no provision of the Consumer Protection Act warrants the same. Further Code of Civil Procedure is not applicable to the Consumer Fora. Only limited provisions of CPC alone is applicable. 10. The contention that the admitted delay caused cannot be equated with the service faults of private courier services which run on commercial basis only and the postal department is under Universal Service Obligation and suffers heavy losses in its efforts to fulfill the above said obligation is also not acceptable. It is only lame excuse to justify the deplorable deficient service committed by them. The statement that department handles 6700 million postal articles in a year is also made without basing on any datas and statistics. The recent datas show that the number of postal articles carried by postal Department is considerably diminished due to the development of information technology. That was a reason why now the services of the post offices are diversified to other fields. That being so they ought to have been more prompt, accurate and cautious in handling the few postal articles entrusted with them in order to maintain their reliability. 11. It is true that for each and every case of delay or loss the department could not be made liable since it casts serious financial burden on Govt. of India. But even Sec.6 of the Post Office Act does not protect a wrong doer if he commits willful act or default to cause loss, misdelivery, delay or damage. So in such cases the Govt. need not bear the brunt of such a liability and the loss can be recovered from the culprit who committed default. The Hon’ble Supreme Court of India in the case of Lucknow Development Authority vs. M.K.Gupta(1993 CCJ 1100), III (1993)CPJ 7(SC) has held Today the issue thus is not only of award of compensation but who should bear the brunt. The concept of authority and power exercised by public functionaries has many dimensions. It has undergone tremendous change with passage of time and change in socio economic outlook. The authority empowered to function under a Statute while exercising power discharge public duty. It has to act to sub serve general welfare and common good. In discharging this duty honestly and bonafide loss may accrue to any person. And he may claim compensation which may in circumstances be payable. But where the duty is performed capriciously or the exercise of power results in harassment and agony then the responsibility to pay the loss determined should be whose? In a modern society no authority can arrogate to itself the power to act in a manner, which is arbitrary. It is unfortunate that matters, which require immediate attention, linger on and the man in the street is made to run from one end to other with no result. The culture of window clearance appears to be totally dead. Even in ordinary matters a common man who has neither political backing not the financial strength to match the inaction in public oriental departments gets frustrated and it erodes the credibility in the system. Public administration, no doubt involves a vast amount of administrative discretion, which shields the action of administrative authority. But where it is found that exercise of discretion was malafide and the complainant is entitled to compensation for mental and physical harassment then the officer can no more claims to be under protective cover. When a citizen seeks to recover compensation from a public authority in respect of injuries suffered by him for capricious exercise of power and the national commission finds it duly proved then it has a statutory obligation to award the same. It was never more necessary than today when even social obligation are regulated by grant of statutory powers. The test of permissive form of grant are over. It is no imperative and implicit in the exercise of power that it should be for the sake of society. When the court direct payment of damages of compensation against the state the ultimate sufferer is the common man. It is the tax payers money which is paid for inaction of those who are entrusted under the act of discharge their duties in accordance with law. It is therefore, necessary that the Commission when it is satisfied that a complainant is entitled to compensation for harassment or mental agony or oppression, which finding of course should be recorded carefully on material and convincing circumstances and not lightly, then it should further direct the department concerned to pay the amount to the complainant from the public fund immediately. But to recover the same from those who are found responsible for such unpardonable behavior by dividing it proportionately where there more than one functionaries. 12. In the above judgment the Hon’ble Apex court while interpreting the word ‘compensation’ has held that the FORA constituted under the Consumer protection Act is empowered to award compensation to the consumer for the injustice suffered by him and the compensation in legal sense constitutes actual loss or expected loss or may extend to physical ,mental or even emotional suffering, insult, injury or loss. 13. From the above judgment it is now manifest that the FORA(FORUMS) constituted under the C.P.Act 1986 can award compensation for a consumer for the injustice suffered by him. Therefore even though as per Rule 66 B of Indian Post Office Rules 1933 compensation for any delay of domestic speed post articles beyond the norms determined by the postal department shall be equal to the composite speed post charges collected, the FORA can consider the emotional, mental sufferings undergone by the consumer and award adequate compensation on that head. The said compensation is outside the purview of Indian Post Office Rules. Yet another reason that enables the FORA to award compensation is Sec.3 of the C.P.Act which envisages that Consumer Protection Act is in addition to and not in derogation of any other laws. That means it is a supplement to other laws. So on this ground also FORA can award compensation for the sufferings caused to the consumer due to the deficiency in service of the service provider. 14. Tamil Nadu State Commission in the case of Superintendent of Post offices Vs. S.Muthukala reported in III (2009) CPJ 20) has dismissed the appeal filed by Postal Department. In that the facts and circumstances were identical to the case on hand. In that case also complainant could not submit his tender in time due to the delayed delivery. The Hon’ble State Commission found deficiency in service rendered by the opposite party and directed to pay compensation to complainant. 15. The Hon’ble State Commission, Union Territory, Chandigagh in the case of General Post office through Post Master vs. Manish Kumar reported in 2010 CTJ 470 (CP) (SCDRC) has upheld the order of the Dist.Forum awarding compensation to the consumer on account of missing his chance to participate in a test due to the delayed delivery of the postal article. In that case, the Hon’ble State Commission even after considering the decision of the Hon’ble National Commission rendered on 18/9/2002 has held that Sec.6 of the Indian Post Office Act does not give the officials of the postal department unconditional protection in all cases of the loss, misdelivery, delay or damage to the postal articles. 16. The State Commission Punjab in the case Sub Post Master Post office Nawanshahr and another Vs. Sahib singh 2010 CTJ 816 (SCDRC) while dismissing the appeal filed against the District Forum has also lift the protective cover of Sec.6 of Post office Act to held the postal authorities liable. 17. Recently Hon’ble National Consumer Disputes Redressal Commission had to deal with a case in Superintendent of Post & Telegraph vs M.L.Gupta reported in 2009(1) CPR 41 (NC) and observed that this provisions (Sec.6 of the Indian Post Office Act 1898) is being used, abused as well as misused. Protection if any U/S 6 and for that matter under all other laws would be attracted to reasonable, fair bonafide and genuine acts of the litigant. But it cannot be invoked in cases of gross high handedness. 18. In another recently decided case by the Himachal State Commission in Sitaram Dhiman vs. Senior Postmaster Shimla, the migration certificate of a candidate for B.Ed examination sent by speed post was not delivered on time. Holding the post office to compensate the student, who lost a valuable academic year, has held by its order dtd. 6/1/2010 that Sec.6 is not a windscreen to justify all acts of negligence, remissness, inaction etc on the part of postal authorities in discharging their official duties. 19. There is yet another reason for passing an order in favor of complainant has to be discussed. The complainant sent the tender in a special envelop by SPEED POST. The purpose of Speed Post is to take the consignment to its destination at the earliest opportunity rather than that of the ordinary postal articles. A special register is also maintained for sending speed post articles and EXTRA CHARGE is also prescribed for sending by SPEED POST. If that be so the opposite party should have been more careful and vigilant about its timely delivery. 20. In this context it is worth to look into another important decision rendered by Hon’ble Andhra Pradesh High Court reported in 2010 CTJ 881(Andra Pradesh High Court) (CP) and II (2010) CPJ 577(DB). In the said judgment the Hon’ble High Court dismissing the Writ Petition filed by Union of India against the order of Andhra Pradesh State Consumer Commission has held that when extra charges are collected by the Department, for registered post with acknowledgment due proper caution should have been taken in delivery otherwise distinction between ordinary post and registered post would stand obliterated. On the above facts and circumstances set out, it can be concluded that the opposite party is liable to compensate the complainant on account of the mental agony and hardship he suffered due to loss of his opportunity in taking part in the tender for bulk supply of petroleum products sent by speed post through opposite party. 19.Relief & Costs: The claim of complainant is ` 2,00,000/- with costs. But it is not brought to our notice that who was the successful tenderer and what was the rate quoted by him to obtain the contract. It is also not brought in evidence that what was the amount quoted by the complainant. Therefore, it cannot be presumed that even if the tender is delivered to the consignee within the time stipulated the complainant would be the successful tenderer . Therefore, he is entitled only for a reasonable compensation. We therefore fix a global sum of ` 20,000/- as compensation together with cost of ` 3000/- for that. The opposite party can recover the said amount from the concerned employees or officials who committed the mischief for willfully delaying the delivery of the speed postal article after conducting a thorough enquiry in the matter in view of the judgment cited supra So the Govt. need not bear the brunt of such liability. If such a practice is introduced then the officials and employees of the Postal & Telegraph Department will be more vigilant, cautious and responsible in discharging their duties and no doubt it will improve their work culture Hence the complaint is disposed accordingly. Time for payment of compensation and costs of ` 20,000/- and ` 3000/- respectively is limited to 30 days from the date of receipt of copy of the order. Failing which the compensation of ` 20,000/- will carry interest @ 9% per annum from the date of complaint till payment. Exts: A1-speed post receipt A2-returned speed Post article A3-29/7/09- letter to Op A4-6/8/09- reply of OP A5-copy of tender details B1-dt.5/2/10-copy of memo No.CRF2X-11/09-10 B2-copy of Sec.6 of IPO Act1898. B 3-21/1/99-copy of notification No.GSR40(E) PW1-S.A.Wahab-Complainant MEMBER PRESIDENT eva/ | 
