DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANSA. Complaint No.95/15.07.2008 Decided on : 16.01.2009 Madan Lal S/o Sh. Ram Pratap, Resident of village Jhanda Khurd, Tehsil and Police Station Sardulgarh, District Mansa. ..... Complainant. VERSUS 1.Superintendent, Head Post Office (General), Bathinda, Tehsil and District Bathinda 2.Post Master, Post Office Sardulgarh, Tehsil and Police Station Sardulgarh, District Mansa. 3.Branch Post Master, Jhanda Khurd, Tehsil and Police Station Sardulgarh, District Mansa. ..... Opposite Parties. Complaint under Section 12 of the Consumer Protection Act, 1986. ..... Present: Sh.Manish, Advocate, counsel for the complainant. Sh.B.D.Jindal, Advocate, counsel for the opposite parties. Quorum: Sh.Pritam Singh Dhanoa, President. Sh.Sarat Chander, Member. Smt.Neena Rani Gupta, Member. ORDER:- Sh.Pritam Singh Dhanoa, President. This complaint has been filed by Sh.Madan Lal, son of Sh. Ram Partap, Resident of village Jhanda Khurd, , Tehsil Sardulgarh, District Mansa, against the Post Master, Sardulgarh and other postal authorities, under Section 12 of the Consumer Protection Act, 1986 (in short called the 'Act'), for payment of compensation, in the sum of Contd........2 : 2 : Rs.50,000/-, on account of, mental and physical harassment and costs, in the sum of Rs.2,000/-, for expenses incurred, by him, in filing the complaint. Briefly stated, the case of the complainant is, that he sent some important documents, including his driving licence, on 28.2.2008, through registered post, addressed to Sh.G.Nagareddy, Sri Niwas Auto Mobiles, Opposite Ganesh Theatre, Shamshabad, Post & Division R.R., District Andhra Pradesh . The complainant, has affixed requisite postal stamps, on the said registered cover, and after receiving the same from him, OP No.3, had issued receipt No.4711, to him, on 28.2.2008, as such, the complainant is consumer, under the opposite parties. The registered cover, containing documents sent, by the complainant, was to be returned undelivered, if the same, has not been delivered, to the addressee, but the same, has neither been delivered, to the person, to whom, it has been addressed, nor it has been received back. The complainant approached the OP No.1, who orally informed about the non delivery of the registered cover. He also sent application dated 28.3.2008, through registered post, vide receipt No.2756, to the OP No.1, but neither reply, has been given, nor any action, has been taken by him. The complainant, has suffered mental and physical harassment, due to non delivery, of his postal cover, as such, there is deficiency in service, on the part of the opposite parties, for which, he is entitled, to claim compensation and costs, for expenses incurred, for filing of the instant complaint. Since the opposite parties, have not taken action, inspite of notice served upon them. Hence this complaint. On being put to notice, opposite parties filed written version, resisting the complaint, by taking preliminary objections; that the complainant, has no cause of action, to file the complaint; that the complainant, is not a consumer, of opposite parties, within its definition, given in the Act and there is no deficiency in service, on the part of the opposite parties; that as per provisions of section 6 of the Indian Post Office Act, 1898, the opposite parties, are not liable, to pay any Contd........3 : 3 : amount, on account of compensation or costs, to any person, if postal article, is lost or mis placed, in transit. On merits, it is admitted, that postal cover, was delivered, by the complainant, in the post office, at Village Jhandu Khurd and receipt No. 4711, was issued, on 28.2.2008, but the opposite parties did not know, the contents of the envelope. It is admitted, that application dated 28.3.2008, has been received, from the complainant, in the office of the opposite parties, and on the basis of the same, it was loaded, on the website, for information of concerned postal authorities. However, it is submitted, that registered cover, was not opened, in transit. It is also submitted, that the opposite parties, sent their requisite performa of an application to the complainant for payment of compensation to him, which they are entitled, to pay in excess of Rs.100/-, as per rules, on the subject. It is also contended, that reply, has been sent, to the complainant, by the opposite parties to the notice dated 10.6.2008 served by him vide letter dated 25.7.2008. Rest of the averments, made in the complaint, have been denied, and a prayer has been made, for dismissal of the same, with costs. On being called upon, by this Forum, to do so, the counsel for the complainant, tendered his affidavit, Exhibit C-1, and photo copies of documents Ext.C-2 to C-9, and closed his evidence. On the other hand, learned counsel, for the opposite parties tendered, in evidence affidavit of Sh.Darshan Singh, Branch Post Master, Jhanda Khurd Ext.R-1 and affidavit of Sh.Gurdeep Kumar, Sub Post Master, Sardulgarh Ext.R-2 and closed, their evidence. We have heard the learned counsel for the parties and gone through the oral and documentary evidence, adduced on record, by the parties, carefully, with their kind assistance. As per the admitted facts, the complainant, delivered his registered letter containing documents, on 28.2.2008, at Post Office Jhanda Khurd, which was pre-paid and addressed, as per address given in the Contd........4 : 4 : the complaint. It is also admitted fact, that the opposite parties, issued receipt No.4711 dated 28.2.2008, after receipt of the postal cover, from the complainant and he filed application, dated 28.3.2008 with the OP No.1, whose officials issued receipt No.2756, in receipt thereof. It is not disputed, that before filing of the instant complaint, the complainant, has served legal notice upon the opposite parties, showing his concern, about the non delivery of his registered letter and opposite parties loaded information for concerned postal authorities. These facts are otherwise also proved, by the copies of the documents, placed on record, by the complainant. It is not disputed, by the opposite parties, that registered letter, sent by the complainant, has neither been delivered to the addressee, nor it was returned back undelivered, to the complainant, for want of complete address for the reason best known to them. To begin with Sh.Manish, Advocate, learned counsel for the complainant, has submitted, that in their written version, the opposite parties, have admitted the factum of non delivery, of the registered cover posted, by the complainant and they have failed, to redress his grievance, except loading the complaint, regarding non delivery, on website, despite personally, being approached and filing of the complaint by him, because of which, he has been, subjected to mental and physical harassment. Learned counsel argued, that the opposite parties, have received, the registered cover, from the complainant for consideration, as such, he is consumer, under them and there is deficiency, in service, on their part and they are liable, to pay him compensation, as prayed for. On the other hand, learned counsel for the opposite parties Sh.B.D.Jindal, Advocate, has, at the out set, submitted that as per provisions, of Section 6, of the Indian Post Office Act, 1898, liability cannot be fastened, upon the Government, on account of loss, misdelivery, delay or damage to any postal article, in course of transit, except when there is express agreement, with the person, entrusting the article for Contd........5 : 5 : delivery. Learned counsel argued that under the said provisions, even no officer of the Post Office may be fastened liability, on such grounds unless he has caused any such act fraudulently, by wilful act or default. Learned counsel, has argued, that as per the provisions of Clause 163, of the Guidelines issued, by the Postal Department, liability of the Post Office, is only limited, to the extent of Rs.100/-, even if, this Forum, has jurisdiction to entertain and try the complaint, and comes, to the conclusion, that there is deficiency in service, for which the consumer, may be compensated. In support of his contentions, learned counsel, has placed reliance upon 2007(I) CPC NC 297 Union of India & Ors. Versus R.C.Puri, wherein the complainant, sent blood test report of his wife through post, for delivery of which, delay was cause, because of which he alleged, harassment stating that his wife, could not be properly treated, by the doctor, in time and he filed the complaint, in the Consumer Forum, for grant of compensation. The District Forum awarded, compensation, in the sum of rupees 4 lacs, for deficiency in services and its order, was upheld, by the Hon'ble State Commission. In Revision Petition, preferred by the opposite parties, impugned orders, were set aside and it was held by the Hon'ble National Commission, that respondent, is entitled, to payment of compensation only equal to composite speed post charges paid by him and complainant was directed, to refund the amount of rupees 4 lacs, minus compensation equal to composite speed post charges. At this stage, learned counsel for the complainant, has argued that provisions of Section 6 of the Indian Post Office Act, 1898, cannot be enforced, by the postal authorities as a means, for depriving the sender of his legitimate claim for compensation, for the loss of the insured cover, during the course of transit and liability of the Government and the Postal Authorities is unlimited. We find merit in the arguments, advanced by the learned counsel for the opposite parties. Section 6 of the Indian Post Office Act, Contd........6 : 6 : 1898 provided as under: '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 by 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 damages, unless he has caused the same fraudulently or by his wilful act or default.' The bare language of the above said provisions goes to show, that in case of loss, of any postal article, in transit, liability cannot be fastened, on the Government, or any officer, of the post office, for loss, misdelivery, delay or damages, unless he, has caused any such act fraudulently or by his wilful act or default of any official/officer in the post office. The provisions of the Consumer Protection Act, 1986 cannot be enforced, in derogation of the provisions of any other law for the time being , as envisaged, in Section 3 of the said Act. In view of the above said bar imposed, by the legislature, under Section 6, of the Indian Post Office Act, 1898 and provisions of Section 163 of the guidelines, issued by the Postal Department, on the subject, liability of the post office and its officers, is restricted, to the extent of Rs.100/-, irrespective of the quantum of loss suffered by the complainant, unless he pleads and proves, that there was fraudulent, wilful act or default. In this regard, reference may be made to 1997(2) CLT Pb. 66 Union of India and others versus Ramesh Kumar Khanna & Anr, wherein it, has been held, that District Forum directed the opposite parties, to pay a sum of Rs.5000/-, to the complainant, for non delivery, of the registered letter, to the addressee. The order of the District Forum, was modified, by the Hon'ble State Commission, to the extent, that appellants would pay a sum of Rs.100/-, with interest, at the rate of 18 per cent, Contd........7 : 7 : holding that liability of Post Office can be fastened, only on proof of fraudulent or wilful act or default as per provisions of Section 6 of the Indian Post Office Act, which complainant, has failed to prove. It is further held, that provisions of Clause 163, of the guidelines, issued by the Postal Department, liability of the Post Office, is only to be limited, to the extent of Rs.100/-. In the instant case, complainant, has not even alleged, that there was fraudulent, wilful act or default, on the part, of the opposite parties or their officials/officers, because of which, registered cover posted by him containing documents including his driving licence, has been lost, in transit. In the light of our above discussions, and being fortified by ratio of judgments, delivered in the above said case, by our own State Commission, we have come to the conclusion, that complainant, is not entitled, to payment of compensation in the sum of Rs.100/-. Since rate of interest awarded, by the Nationalised Banks and Post Offices has considerably gone down, after the above said decision given by the Hon'ble Punjab State Commission, therefore, we are of the view, that end of justice, would be fully met, if interest is awarded, at the rate of 9 percent , from the date of filing, of the complaint, till the date of payment. In their affidavits Ext.R-1 and R-2, Sh.Darshan Singh, Branch Post Master, Jhanda Khurd and Sh.Gurdeep Kumar, Sub Post Master, Sardulgarh, have deposed, on oath that prescribed performas, were sent to the complainant, for making payment of compensation, as per the rules of their department, on the subject, but he has not returned the same duly filled and signed. However, the opposite parties, had not tendered copy of any such document, on account of which, this Forum may deny the relief sought, by the complainant, for award of costs, to compensate him, for the expenses incurred, by him, in filing of the instant complaint. As per the admitted facts, the complainant, has delivered a registered letter containing Contd........8 : 8 : documents including his driving licence, in the Post Office Jhanda Khurd on 28.2.2008, for delivery, in the State of Andhara Pradesh. He has, admittedly, sent written complaint, on 28.3.2008, on which, no action, has been taken, by the opposite parties, except of loading of the information on website, for information of their office concerned. The complainant, has also served notice upon the opposite parties, through his counsel, but no action, has been taken, by them, except conveying information, to his counsel, that enquiry about the complaint made by him is in progress. Therefore, interests of justice demand, that complainant be compensated, for expenses incurred, by him, in terms of costs, which can be recovered, by the opposite parties, from the official concerned, if found guilty, in departmental enquiry, initiated against him, if any. For the aforesaid reasons, the instant complaint partly succeeds and the opposite parties are directed, to pay a sum of Rs.100/-, to the complainant, on account of compensation, along with interest, at the rate of 9 percent, from the date of filing of the complaint i.e. 15.7.2008, till the date of actual payment. The opposite parties are also burdened, in the sum of Rs.500/-, as costs of filing the complaint, to compensate the complainant. The above said payment be made by the opposite parties, within a period of two months, from the receipt of the copy of this order. The copies of the order be supplied, to the parties, free of costs, as permissible, under the rules. File be indexed and consigned to record. Pronounced: 16.01.2009 Neena Rani Gupta, Sarat Chander, P.S.Dhanoa, Member. Member. President.
