DOF.5.9.07

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR

Present: Sri.K.Gopalan:  President

Smt.K.P.Prethakumari:  Member

Smt.M.D.Jessy:               Member

                                                  Dated this, the  7^th  day of June    2010

C.C.No.153/2007

1.C.K.Ramachandran (Died)

2.K.B.Suvarnalatha

  W/o.Late C.K.Ramachandran

  “Souparnika”,

   Kannoth Compound,

   Pallikunnu, Kannur 4.

2. C.R.Abhijith

3. C.R.Abhineeth.

   (Rep. by Adv.K.N.Shaji)                                           Complainant

1. Superintendent of Post offices,

Kannur Division, Kannur 1                                            Opposite party

O R D E R

Smt.M.D.Jessy,Member

            This is a complaint filed under section12 of consumer protection act for an order directing the opposite party to pay a sum f Rs.26198/- as compensation.

            The case of the complainant in nutshell is as follows: the complainant booked a postal article under EMS speed post on 23.4.07. It was sent to his son in Chennai. The cover contained one Tatkal Train ticket and photo copies of documents and photographs of his wife. As per the delivery norms the article would have delivered to the addressee by the third day i.e. by 26.4.07. But the article did not reach the addressee even by27.4.07. Resultantly he had sustained loss of money hardship and mental agony. Hence on 8.5.07 he wrote a letter to the Superintendent of Post office, Kannur Division informing him about non receipt of article and seeking compensation. Reply received informing that they were looking into the mater. On 4.6.07 the complainant again sent letter to opposite party informing that the documents in the cover had time limit validity and hence its recovery at a letter stage will not make up the damages already caused. On5.6.07 complaint received second letter dt.4.6.07 from the opposite party with a title – “settled reply”. It was informed that the article was delivered to the addressee on 26.4.07 itself. Complainant wrote to postal department on 6.6.07 requesting him to send a photocopy of the receipt. But it was   the addressee as claimed by him showing the dispatch of the letter to not respond. After one month and 19 days the article was delivered to the addressee since the documents did not reach the addressee in time he could not used the train ticket and could not take loan from the bank before 30^th April 2007. This caused loss of money mental agony and lot of hardships to the complainant. By sending a settled reply upon a false claim the opposite party had prayed fraud upon the complainant which added his mental agony. Therefore the complainant claimed an amount of Rs.27698/- as compensation from the opposite party for the loss sustained to him.

            On receiving complaint notices was issued to opposite party. The opposite party appeared and field version contending that the opposite party being no offer under the Union of India, Union of India is a necessary party in the proceeding as such the complaint is bad for non-joinder of necessary parties. The opposite party admitted that on23.4.07 the complainant had booked a speed post article under NO.EE.766233061 at Kannur Head post office to be delivered to an addressee at Chennai. The complainant had lodged a complaint on 8.5.07 to the opposite party intimating the non delivery of the envelope. The said complaint was duty registered in the web and as per reply received from speed post business centre, Chennai. The speed post letter was delivered to the addressee on26.4.07 itself and a reply was given to the complainant on 4.6.07. The complainant on 8.6.07 had requested for proof of delivery it was not issued since the speed post letter under complaint was not paid for proof of delivery by the complainant at the time of booking of the speed post article. The opposite party submitted that there was no delay in delivery of the speed post letter as alleged by the complainant. If at all thee is any delay in delivery of the article the opposite party is willing to refund the speed post charges which is the compensation statutorily fixed incase of delay in delivery. Since the complainant is having no case that the officials working in the department had fraudulently or willfully acted to cause any damage to the complainant in respect of the transmission of the speed post letter? The dispute raised by the complainant is outside the purview of consumer protection act. As per section6 of the Indian Post office Act 1898 the government is exempted from any liability for loss, misdelivery or 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 govt. and an officer of the post office shall incur any liability for any such laws, misdelivery, delay or damage unless he has caused the some fraudulently or by his willful act or default. Hence the complaint is liable to be dismissed.

            The complainant was died on 6.4.08 and his legal heirs wife and children were imp leaded thereafter.

            On the above pleadings the following issues were framed:

1. Whether the complaint is bad for non-joinder of necessary party?

2. Whether there is any deficiency of service on the part of opposite party?

3. Whether the complainants are  entitled to get compensation as claimed in the complaint, If     so the quantum?

4. Relief and cost.

            The evidence consist of the oral testimony of PW1 and documents Exts.A1 to A4 marked. No oral or documentary evidence was adduced on the side of opposite party.

Issue No.1

            The opposite party in their version submitted that sine the opposite party being an officer under the Union of India, Union of India is a necessary party in the proceedings. Here the opposite party is the superintendent of Post offices Kannur District who is the official authority representing the department for all purpose through out Kannur. The opposite party is appearing before this Forum not on his personal capacity. He is defending the case on behalf of the postal department and the govt. is also vicariously liable for the acts of the employees which are legally done during the course of their employment. Here the opposite party is the official who is representing the department for al disputes arising out of the postal (D.O), Kannur like District Collector representing the State govt. Merely because the Union of India, who is the employer of opposite party is not made as a party, the opposite party himself representing the Union of India, as such the complaint is not bad for non-joinder of necessary party. The first issue is answered accordingly.

Issue No.2

            The case of the complainant is that  he had booked a postal article under EMS speed post on23.4.07 from Kannur Head post office vide Ext.A1 receipt is  admitted by the opposite party. Since the complainant booked the article through speed post, it is expected to deliver the same with in a reasonable time. The public is availing the speed post service during the course of emergency. The complainant believed that the letter will be reached to the addressee with in 3 days. But the complainant alleged that the article was not reached to the addressee evenby27.4.07. Since the documents forwarded by the complainant is having time limit validity the delay of delivery within a reason able period  caused heavy loss and  agony to the complainant. So complainant sent a letter to the opposite party on 8.5.07 intimating the non delivery of the speed post article and claiming compensation. For that notice a reply was issued by the opposite party on 10.5.07 stating that they are enquiring into the mater and will sent reply again shortly but there was no response from the opposite party to the complainant. Hence the complainant again sent Ext.A2 (2) letter dt.4.6.07 requesting payment of the compensation urgently. To that letter the opposite party on the same day sent a reply stating that “ The complaint of non delivery of article of speed post letters with transaction N o.EE.766233061 IN on 23.4.07 of Kannur is  settled on 31.5.07 with the following information that “ Delivered on26.4.07. The complainant stoutly denies the allegation that the speed post article was delivered by the department to the addressee on26.4.07 and the said contention is absolutely false. There was no settlement arrived between the complainant and department on31.5.07 and the term settled reply is also baseless. Hence to prove the veracity of the contentions in Ext.A3 reply notice complainant sent a letter dt.6.6.07 marked as Ext.A2(3) to the opposite party requesting to issue a photocopy of the receipt showing the proof of delivery of the postal article to the addressee. But there was no response from the side of opposite party. The complainant further alleged that on 12.6.076 i.e. after one month and 19days from the date of dispatch the speed post article was delivered to the addressee. The complainant produced the envelope and the documents contained there in which was sent through speed post before the forum and marked as Ext.A4.  From these averments of both the parties the simple question to be  answered is whether the article sent by complainant through speed post is delivered by the department to the addressee on 26.4.07. If the contention of the opposite party is true and the article was delivered to the addressee on26.4.07 there would not arise any complaint from the side of the complainant. The main allegation in Ext.A2 (1) dt.8.5.07 notice that the letter was not delivered to the addressee so far. Since the complainant raised such a serious contention it was the bounden duty of the opposite party to produce the positive evidence to show that the letter was delivered to the addressee on 26.4.07 itself. It can be possible only by producing the receipt which is during the course of transaction obtained by the postal department from the addressee while delivering the article. But the opposite party by saying a lame excuse that the complainant was not paid for “proof of delivery at the time of booking the speed post article. If the opposite party issued a photo copy of the receipt as requested by the complainant vide Ext.A2 (3) notice then and there, entire matter would have been stopped. It is also pertinent to note that against the above said contentions the opposite party delivered the speed post article to the addressee on12.6.07, during that period the purpose for which the articles were sent became fruitless. Hence there is clear deficiency of service on the part of opposite party to wards the complainant. The opposite party further contended that neither the opposite party nor any other officials working in the department had fraudulently or willfully acted to cause any damage to the complainant or to the addressee in respect of the transmission of the speed post letter and hence the opposite party is liable to get protection under section 6 of Indian post office Act 1898. Section 6 of  Indian Post office Act 1898 read as follows: “ The govt. shall  not incur any liability by reasons of the loss, misdelivery or delay of, 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 govt. as here in after 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 some fraudulently or by his willful act of default. Here section 6 grants complete immunity to the govt.  For liability, for loss, misdelivery, delay, or damage to the postal article. The second part of section 6 deals with individual liability of the postal employees which  sates that no officer of the post office shall incur any liability by reason f any such loss, misdelivery delay or damage unless he has caused the same fraudulently or by his willful act or default. In this case there is no allegation that the opposite party is guilty of fraud or willful act or willful default which leads to non-delivery of postal article. From the available evidence on records which will clearly shows that the department has not delivered the article sent by the complaint through speed post to the addressee at the time of issuing Ext.A2(1) notice to opposite party. But after one month the opposite party sent a reply upon the information received from Web based customer grievance landline system that the article was delivered to the addressee on 26.4.07. As we found that the said contention of the opposite party is absolutely false, there is gross negligence and default on the part of the employees of department in delivering the postal article to the addressee. To patch up their misconduct they issued Ext.A3 reply which prima-facie seems to be false merely because there is a protective cover on the employees of department by a statute it does not mean that they can make their function on mockery. The officials acting under the govt. are having obligation towards the public. The public is entitled to know the real facts. The employee of the department who had given false information to the opposite party is liable to be penalized. Irresponsible officers cannot take shield upon a statute for their gross and negligent acts. Hence the opposite party is not entitled to get protection under section 6 of Indian post office act 1898. For instance in a recent case where the money order was delivered late which as per the complainant resulted in his father’s death. Chandigarh U.T state Commission held in Senior Superintendent of Post offices, Rohtak Vs. Paramatma parshad, 2010 CTJ 356 that postal officials found to be negligent and  awarded Rs.10,000/- compensation. Thus issue No.2 is answered in favour of the complainant holding that there is deficiency in service on the part of opposite party.

Issue No.3

The complainant paid Rs.25/- for sending  the article through speed post since inordinate delay was committed by the opposite party for delivering the article to the addressee the complainant is  entitled to get back the amount of Rs.25/- which complainant spent for booking the article through speed post  The envelope which was forwarded by the complainant was contained a Tatkal train ticket from Chennai to Mangalore for travel on 27.4.07 and some photocopies of document and a photograph of the wife of the complainant to enable the addressee for taking loan from the bank before 30.4.07. Due to the delay caused for delivering the speed post article to the addressee the addressee could not travel by train using the thatkal train ticket and also could not take loan from the bank. The envelope along with the thatkal train ticket delivered to the addressee is produced by the complainant before the Forum and marked as Ext.A4. Since there is  a huge delay the train ticket cannot be refunded from  the railway. Hence the complainant is entitled to get Rs.498/- as the price of the ticket. There is no evidence adduced by the complainant regarding loss sustained due to the non availability of the loan from the bank.  But it is quite evident that the complainant has suffered much mental agony, for which the complainant is entitled to get Rs.1000/- as compensation together with Rs.500/- as cost of this proceedings. Thus issue No.3 is found in faovur of complainant.

            In the result, the complaint is allowed directing the opposite party to pay Rs.25/-(Rupees Twenty five only) which the complainant paid for sending the article and to pay Rs.498/-(Rupees Four hundred and Ninety  Eight only) as the value of railway ticket together with Rs.1000/-(Rupees One thousand only) as compensation and Rs.500/- as cost of this proceedings  to the complainants within one month from the date of this  order, failing which the complainant is entitled to execute the order as per the provisions of consumer protection act.

             Sd/-President     Sd/-Member    Sd/-Member

Appendix

Exhibits for the complainant

A1.Receipt issued by OP

A2.Copyof the letter  dt.4.6.07sent to OP

A3. Letter dt.4.6.07 sent by OP

A4.Train ticket  envelope and documents.

Exhibits for the opposite parties: Nil

Witness examined for the complainant

PW1.Abhijith.C.R

Witness examined for the opposite parties: Nil   /forwarded by order/

                                                                                    Senior Superintendent