Assam

Dibrugarh

CC/17/2012

MD. PERVEZ KHAN - Complainant(s)

Versus

SUPERINTENDENT OF POST - Opp.Party(s)

SRI RAJESH KESHARI

19 Mar 2021

ORDER

IN THE COURT OF THE PRESIDENT, DIST. CONSUMER COMMISSION,

DIBRUGARH.

 

 

C.P. CASE NO. 17/12

 

 

Present :- Dr. Nitendra Nath Das

     President,

              Dist. Consumer Forum

    Dibrugarh.

 

 

Shri Jadav Gogoi

           Member,

              Dist. Consumer Forum

Dibrugarh.

 

 

MD. PERVEZ KHAN,

Son of Late Samsuddin Khan,

Resident of Hotel Surya, New Market

Above rice market,

P.O.,P.S. and DistrictDibrugarh,

Assam.                                     ……………….. Complainant

 

 

Vrs.

 

1. SUPERINTENDENT OF POST,

Head Post Office,

Dibrugarh Division,

Dibrugarh,Assam.

 

 

2. SUPERINTENDENT OF POST,

Head Post Office,

Tinsukia Division,

Tinsukia,Assam.

                                                ..................... Opposite Parties

 

 

 

 

 

 

 

 

 

 

Date of Argument : 23.05.2013

 

Date of Judgement :20.02.2016

 

 

 

This CP case has been filed under section 12 of C.P. Act praying for directing the OPs to  refund Rs.12,560/- being the value of the lost/ missing goods, Rs.40,000/- being compensation towards mental harassment and agony to the complainant, Rs.10,000/- towards the cost of litigation and interest @18% per annum from 25.08.11 onwards.

 

 

 

J U D G M E N T

 

           The case of complainant in brief is that the complainant had purchased some knitted fabrics worth Rs.12,560/- from Bhajam Di Hatti and Embroideries of Amritsar and requested  the owner of the said shop to make arrangement for delivery of the said goods to the complainant at Dibrugarh through Postal department. Accordingly, the owner of the said shop sent the aforesaid articles to the complainant through GPO, Amritsar Postal Department on 25.8.2011. Later on, when the complainant did not receive the aforesaid goods after few days of booking, the complainant approached the Postal Department at Dibrugarh to enquire about the delay of delivery of the aforesaid goods. Officials of Dibrugarh Postal department told him that goods are yet to be received by them and as soon as they receive the same, they would inform to the complainant and also gave a details of movement particulars of the aforesaid goods i.e. EP 118797985IN. After eleven days of the booking of the aforesaid goods when the complainant did not get any information about the aforesaid goods again approached to the Postal department at Dibrugarh and also wrote a letter dated 05.09.2011. After receiving the said letter by the Superintendent of Posts he made an enquiry by being complaint No.A-1/DBR DVN/Complaints/2011 Misc. After the said enquiry Superintendent of Posts of Dibrugarh Division through a letter dated 20.10.11 informed to the complainant that though their office have received the bag of the complainant but did not find any goods inside the bag. The complainant was shocked and surprised after knowing about missing of his goods from the Postal department at Dibrugarh. The Superintendent of Posts, Dibrugarh Division verbally informed the complainant that the goods were not lost at their Post Office but it were lost at Tinsukia Head Post Office. As such, the complainant went to Tinsukia Head Post Office for enquiry and on enquiry the complainant was informed that the goods were not lost or missed from their office and if it were lost/missed then the same were lost or missed from the office of Dibrugarh Post Office. From the track record it was also found that the goods were duly received by Tinsukia Office on 30.08.11 and on the same day it was despatched for Dibrugarh Office. The goods which were sent from Amritsar were missing in between Tinsukia and Dibrugarh Postal Division which clearly shows negligence and deficiency in service on the part of Postal Department of Dibrugarh Division and Tinsukia Division. As such, the complainant filed this case claiming Rs.12,560/- being the value of the lost/ missing goods, Rs.40,000/- being compensation towards mental harassment and agony to the complainant, Rs.10,000/- towards the cost of litigation and interest @18% per annum from 25.08.11 onwards.

   

            After registering the case notices were issued to both the OPs who have contested the case and submitted their written statement stating inter-alia that the case is not maintainable in law as well as in fact and also denied the allegation of the complainant.  The OPs stated that the Postal registration receipt in respect of booking of an article for despatch cannot be considered as the receipt of the alleged article in as much as the receipt is merely an acknowledgement of receipt of an express parcel, seal and packed by this sender. But it cannot conceive that the parcel contained the alleged articles. That apart, the sender of the alleged article did not give much importance to prefer to avail insured postal service in order to secure the same, which manifest that the article did not contain any valuable item in it. The OPs further stated that in the course of enquiry while the bags containing the postal article were opened in the office of the OP No.1 but the goods sent from Amritsar for the complainant was not found, which was informed to the complainant and as such, there was not procedural lapse on the part of the OPs. The bag was opened in presence of Supervisor but the goods/ articles were not found in the said bag. According to the OP the bag means the express parcel bag containing all the postal articles closed by Tinsukia Speed Post Centre for Dibrugarh Speed Post Centre on 20-10-11. It is not the bag of the complainant, it only the express parcel bag. The OP stated that the annexure-1 relates to an express parcel bearing No.EP118797985IN dated 25.08.11 which booked at Amritsar GPO. But neither OP No.1 nor OP No.2 received any of the goods as alleged by the complainant. The OPs in their written statement stated that the goods sent to the complainant is very negligent and the sender felt it not necessary to avail the insured postal service. As such, it appears that both the sender and the complainant were negligent in sending the aforesaid goods. Booking of the aforesaid goods through express parcel and not through insured post service made the OPs conceived that there contain no any valuable item. The complainant failed to take resort to the prescribed procedure, norms and rules for redressal of his alleged grievance and as such, the petition filed by the complainant is not at all sustainable in law and the same is liable to be dismissed with cost.

 

              In this case complainant gave his evidence by swearing affidavit as witness No.1 and exhibited as many as 8 (eight) documents in support of his case. On the other hand, OPs examined Sri Netraranjan Saikia for OP No.1 and Sri Hiren Kr. Gogoi, Superintendent of Posts, Tinsukia for OP No.2 but none of them have exhibited any document to rebut the case of the complainant.

 

Discussion, decision and reasons thereof:

            PW-1, the complainant in his evidence stated that he purchased the knitted fabrics worth Rs.12560/- from Bhajan Di Hatti and Embroideries of  Amritsar vide Invoice No.659 dated 23-08-2011 i.e. Ext-1. After being purchased the aforesaid goods, the complainant requested the owner of the shop to send the goods through Postal Department. Accordingly, the owner of the shop booked the aforesaid goods through Postal Department on 25.08.11 from Amritsar GPO vide Ext-2 i.e. Postal Registration Booked Receipt No.EP118797985IN. After few days the complainant enquired about the aforesaid goods at the Postal Department, Dibrugarh and the Postal Department, Dibrugarh informed him that those articles are yet not received by them and told him that they will informed to the complainant as soon as it will arrive and gave a details of  movement particulars i.e. EP118797985IN. Ext-3 is the above detail movement particulars. After lapse of eleven days  from the date of booking when the above goods did not receive by the complainant he wrote a letter dated 05.09.11 to the Superintendent of Posts, Dibrugarh and requested him to look into the matter, vide Ext-4. After receiving the said letter Superintendent of Posts enquired the matter vide complaint No.A-1/DBR DVN/Complaint/2011 Misc. and the OP informed regarding the enquiry to the complaint vide Ext-5. After due enquiry Superintendent of Posts, Dibrugarh Division through letter dated 20-11-11 i.e. Ext-7 informed  the complainant  that though their office has received the bag but did not find any goods inside the bag. While complainant enquired about the loss of above goods the OP No.1 informed him that  the goods were not lost at their office but it were lost at Tinsukia Head Post Office where from the Postal Department of Dibrugarh had received  booked bag of the goods. From the document Annexure-1 i.e. Ext-3 the track record of Postal Department shows that the goods were booked and moved on 25.08.11 at 19:25:28 hrs from Amritsar Office and were reached Tinsukia Office on 30-08-11 at 09:01:16 hrs and the bag is opened on the same day at 09:02:13hrs and at 09:02:14 hrs goods were received by the Tinsukia Office and thereafter on the same day at 10:08:49 hrs the articles were bagged for Dibrugarh Office and at 17:36:55 hrs the bag sent through  MMS schedule departure 20:00:00 hrs and till then goods were available at Tinsukia Office and thereafter  on 20-10-11 after 51 days Superintendent of Posts, Dibrugarh Division informed PW-1 vide written letter dated 20-10-11 i.e. Ext-7 that his goods were lost. When PW-1 talked with Superintendent of Posts, Dibrugarh Division  he informed him that his goods were lost at Tinsukia Head Post Office as such, he went to Tinsukia Head Post Office for enquiry but it was learnt that the goods were lost from the Office of Dibrugarh Post Office. Ultimately, neither Postal Department of Dibrugarh nor Tinsukia could trace his missed goods which clearly shows negligence and deficiency in service on the part of OPs.

 

          While arguing the case by learned counsel for the OP it was stated  that the complainant is not consumer within the meaning of section 2(1) (d) of the Consumer Protection Act as because the goods were not booked by the complainant and as such, he has not hired the service of the OP for delivery of the alleged articles.

 

         The OP further argued that the complainant has failed to prove booking of the alleged articles in as much as Postal Registration Receipt i.e. Ext-2 is merely an acknowledgment  of receipt of an express parcel which was sealed and packed by the sender and the said receipt of booking of an article cannot be considered as the receipt of alleged articles. From Ext-1 and Ext-2 it cannot be said that the parcel contained exact article as alleged. Further Ext-3 is the express parcel not of an item booked at Amritsar GPO but it cannot be considered as the proof of booking of particular alleged articles.

 

        Learned counsel for the OP again submitted that the sender of alleged articles were very much negligible in as much as the sender neglected to secure the despatch of  alleged article by availing insured postal service nor the complainant instructed the sender to despatch the article through insured service. It is therefore apparent that  the claim of the complainant is absolutely false, baseless and fabricated. While despatching the article the insured postal service was not availed. As such, the question of liability or responsibility does not arise on the OPs. It is submitted that any loss, mis-delivery, delay or damage of any postal article on transmission by Posts the OPs are not attributable. Section 6 of the Indian Postal Office Act 1898 provides that- “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 so far as such liability may in express terms be undertaken by the Central Government as hereinafter provided, an no officer of the Post Office shall incur any liability by reason of any such loss, misdelivery or damage, unless he has caused the same fraudulently or by his wilful act or default.”

 

          In view of the above provision of law OPs are not in any way liable to pay the claim made by the complainant.

 

         So far as the submission of OPs that the complainant is not a consumer U/s 2 (i) (d) of C.P. Act is concerned, it is found that the goods were not booked by the complainant but by the shop keeper Di Hatti and Embroideries of Amritsar whereas, the beneficiary was  the complainant. Sub-clause (ii) clause (d) of sub-section (1) of section 2 of the C.P. Act, which specially pertains to two distinct categories of ‘consumer’ thereby. Inevitably, the first one is the original customer who hires such service  for the consideration. The definition, however, does not stop at that. It proceeds further to  bring within its ambit a second category also, namely, any beneficiary of such service, when these are availed with the approval of the original consumer. It is such a designed that the scope is not only the person who has the privity of contract with the person hiring out the service, but also subsequent beneficiaries thereof, even though the latter may not be a party to the original contract or have a direct nexus therewith. The Act has equally extended it to the subsequent beneficiaries of the service. The complainant in the instant case is the direct beneficiary. The complainant being purchaser of goods directed the shop keeper to send the goods through Postal Department and accordingly the shop keeper send the purchased goods through Postal Department from Amritsar which have direct contractual nexus between the person who have hired the service and the complainant is the beneficiary who is to avail the service who comes well within the beneficent provision of the statute. Taking the view of the above, the fact that the submissions made by the learned counsel for the OP is not sustainable.

 

         As regards to the submission made by OP that the articles mentioned in Ext-1 are not the same article as alleged which were sent through Ext-2 and 3 are concerned, from perusal of the evidence of the complainant it is found that the complainant purchased some knitted fabrics worth Rs.12560/- from Amritsar vide Invoice No.659 dated 23.08.11 and Ext-1 is the said Invoice and after purchasing the said article the owner of the shop sent the goods through Postal Department on 25.08.11 from Amritsar GPO vide Ext-2, the Postal registration booked receipt No.EP 118797985IN. The complainant also gave a detail movement particulars of said EP 118797985IN vide Ext-3 which clearly establish that the goods purchased by the complainant sent through Postal Department and from Ext.3 track record it reveals that the said goods were lost in between Tinsukia to Dibrugarh. Thereafter, it is abundant duty on the OP to prove  that the article sent by Ext.1 are not booked through Ext.2 whereas, the OP failed to prove either by oral evidence or by documentary evidence that those goods were not sent by Postal Department from Amritsar GPO vide Ext-2. If alleged articles were not sent by Ext.2 and 3 i.e. EP 118797985IN the track shows that said article were reached Tinsukia on 30.08.11 and sent to Dibrugarh Division at 20:00:00 hrs on the same day but what were those articles sent through EP 118797985IN  which OP failed to prove. As such, the OP failed to rebut the evidence of the complainant for which it is established that the article purchased by the complainant was sent by Postal Department through Ext-2 and also proved by Ext-3 that article reached Tinsukia. The OPs are to support their defence by cogent evidence which they failed. As such, the submission made by learned counsel for the OP is not sustainable.

 

         So far the last submission made by learned counsel for the OP as to the negligence of the complainant to secure the despatch of the articles by not availing insured postal service is concerned, where the goods are in custody of the carrier and are lost or damaged by the negligence of the carrier or his servant and agent, the carrier is not absolved from his liability. It is well settled principle that carrier’s position is that of a bailee. Therefore, if a bailee fails to perform his obligations he would be liable whether such failure is on account of negligence or for other reason.  In the instant case the goods were sent through express post and the loss of the articles by the Postal Department amounts to negligence and thus, there is deficiency of service on the part of OP. As regard to the immunity of the  Postal Department u/s 6 of the Indian Post Office Act 1898 is concerned, Hon’ble State Commission as well as National Commission viewed the same act as an archaic law and enacted by the Britishers  more than a century ago not with a view to provide service but to protect its officials handling the mail for their acts of omission, commission, negligence as well as due to remissness  on their part. It is further been observed that  with the changing time, sending letters by ordinary post is a matter of past and we are sure that in course of time they are going to become  a part of history. For fast and speedy delivery of letters, parcels etc modes like speed post, courier service etc have become a large extent captured the field. In the case of Superintendent of Posts and Telegraph v. M.L.Gupta and others 2009(1)CPR 41 (NC) held as under-

 

“ 6.      Learned State Commission were of the view that “this is an archaic law enacted by the Britishers with a view to ensure that because of their acts of misfeasance and malfeasance like delay, non-delivery etc., they are not held responsible. In our opinion, all laws are and have to be subordinate to the  Constitution of India which was promulgated in the year 1950. When the provisions of Section 6 of the Indian Post Office Act, 1898, are examined on the touchstone of Article 14 of the Constitution, in the peculiar facts of this case, we have no doubt in coming  to the conclusion that this provision is being used, abused as well as misused  by the appellant in this case. Protection, if any, under Section 6 and for that  matter under all other laws would be attracted to reasonable, fair, bona fide and genuine acts of the litigant like appellant and its subordinate staff. But it cannot be allowed to be invoked in cases of gross high handedness as is the situation in this case.”

 

7.         In this case, it is very clear that there has been a default and gross negligence on the part of the postal authorities in not ensuring the delivery of the postal articles to the right addressee, which has caused pecuniary loss to the complainant. hence, we feel that the postal authorities cannot take shelter under the said provisions of the Act.

 

8.         Accordingly, we not see any legal infirmity or jurisdictional error in the order passed by the lower Fora, which calls for any interference by this Commission. Hence, the revision petition is dismissed. There shall be no order as to costs in these proceedings.”

 

         

        The shop keeper of Amritsar sent the articles by an express parcel, sealed and packed to the complainant by paying more money than required. As such, in view of the above settled law and the decisions, we are of the considered view that the Postal Department is liable for the loss or mis-delivery or default which was caused fraudulently or wilfully. Section 6 cannot debar the act negligence, remission in action on the part of OP in discharge of their official duty as such we are of the considered view that non-delivery/lost of the article clearly constitute wilful act of deficiency on the part of the OP. That being the position of submission made by learned counsel for OP is not tenable.

 

           In view of the foregoing decision and after considering the fact and evidence this Forum comes to an unassailable conclusion that evidence disclosed by the OP has failed to rebut and impair the evidence of the  complainant as regard to the loss of goods caused by the OP. The plea which has been taken by the OP is highly contradictory and inconsistent with regard to the liability of OP No.1 and 2. The complainant for loss of consignment suffered mental harassment, tension and had to move from post to pillar for getting the lost articles which are all in vain. Considering the above the case of the complainant has been  established the deficiency in service committed by OPs as defined U/s. 12  of the Consumer Protection Act. As such, OP No.1 and 2 are held liable jointly and severally for the claim of the complainant. Accordingly, this Forum doth order to pay Rs.12,560/- being the value of the lost goods by the OPs along with interest @ 9% per annum from the date of filing this case till realisation. Further, the OPs are directed to pay Rs.4000/- as compensation towards mental harassment and agony caused to the complainant for non-delivery of the goods. The OPs are also directed to pay Rs.1000/- for the cost of filing this case. The OPs are directed to pay the above said amount to the complainant within one month from the date of this judgment through this Forum.

 

               Send copy of this judgment to OPs for compliance.

 

           Dictated by

 

 

(Sri Jadav Gogoi)                                        (Dr. Nitendra Nath Das)                 

       Member,                                                          President

Dist. Consumer Forum                                 Dist. Consumer Forum

                                                                                     Dibrugarh.                                                            Dibrugarh