BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

C.C.No.30/2013

Dated this the 28^th day of August 2015.

S. Pushparaj, son of Sadanasamy          

No.8, Kammalar Street                

Karaikal – 609 602.            

                                                            ….       Complainant

Vs.

1. Superintendent of Post Offices

    Nagapattinam Division

    Nagapattinam – 611 001.

2. Post Master, Gr.II,

    Karaikal MDG                            

    Karaikal – 609 602     

                                                            ….     Opposite Parties

BEFORE:

            THIRU.A.ASOKAN, B.A., B.L.,

            PRESIDENT 

Thiru V.V. STEEPHEN, B.A., LL.B., 

           MEMBER

FOR THE COMPLAINANT                      :  Thiru,A. Thirumalvalavan and M/s J.

     Anandhi, Advocates

FOR THE OPPOSITE PARTIES               :  Thiru R. Balasubramanian,  

                Advocate/ACGSC   

O R  D  E  R

(By Thiru.A. ASOKAN, President)

This is a complaint filed by the complainant under sections 11 and 12 of the Consumer Protection Act, 1986 praying to direct the opposite parties to pay a compensation of Rs.25,000/- for wrong and delayed delivery of the Speed Post letter containing the ATM-cum-Debit Card for the deficiency attributed on them.

2.  The case of the complainant is as follows:

            The complainant opened a Savings Bank Account No. 67193716559 with the State Bank of Travancore and to facilitate its operation, the State Bank Group, Mumbai dispatched ATM-cum-Debit Card No. 5049937084800011870 on 26.08.2012 and that the complainant temporarily shifted his residence to a house at No.49/C, Moulasa Maraicar Street, Karaikal within the service jurisdiction of the Opposite Party No.2 and also he informed the same to the Opposite Party No.2, but the Speed Post was delivered to a third party on 1.9.2012.  The complainant addressed a complaint on 9.10.2012 to the opposite parties requesting them to retrieve the Speed Post and deliver it to him.  That on 13.10.2012 the Opposite Party No.2 has informed the complainant that the Speed Post was collected from the third party and preserved in the Post Office and directed to come and collect the same in person.  The complainant stated that the direction of the Opposite Party No.2 is an Unfair Trade Practice and also deficiency in service.  The complainant issued a pre-consumer complaint notice on 27.10.2012 to the Opposite Parties and the Opposite Party has affirmed the above unfair transaction.  The Opposite Party No.2 has stated that the Speed Post Article was delivered to the complainant through Post Man on 2.11.2012.  Due to wrong and delayed delivery of the Speed Post containing the ATM-cum-Debit Card, the complainant has experienced a bad Omen and disowned the Savings Bank Account opened in SBI, Travancore Branch, Karaikal.  The complainant underwent mental agony and the purpose for which the SB Account opened was forfeited the collateral action of the opposite parties.

3.         The following are the averments narrated in the reply version filed by the Opposite Party No.1 and adopted by Opposite Party No.2:

            Apart from denying all the allegations by the Opposite Parties, they have stated that the case is not maintainable either in law or on facts.  It is stated by the Opposite Parties that one Speed Post letter bearing No. EK982165480IN was received from State Bank of Travancore, Mumbai by the 2^nd opposite party on 01.09.2012 addressed to the complainant's name at old address viz. 8, Kammalar Street, Karaikal which is the permanent address of the complainant.  The complainant shifted his residence about three years ago to 49/C. Moulasa Maricar Street without giving any instruction letter to the second opposite party.   Later on 9.10.2012 only, the complainant gave instruction letter for change address whereas, the speed post was received by the 2^nd opposite party only on 01.09.2012, hence, it was not possible for the second opposite parte to redirect the said article as per the said instruction letter of the complainant which was given belatedly.  Further, on 1.9.2012, the regular Post Man was on leave and hence, one A. Raja, the Stamp vendor of his office was engaged on that day in the place of regular Postman who while delivering the said speed post noticed the door was locked and on enquiry with one S. Devadoss, the person at Opposite House about the whereabouts of the complainant, the said Devadoss replied that the complainant is his brother and that he has shifted the residence, but the correct address is not known to him.  The said Devadoss who  is the alleged brother of the complainant asked the delivery staff to give the speed post and he would hand over the same to the complainant.  Since the speed post article was booked at Manipal Post Office and if the said article was returned to sender as "Unclaimed", the complainant would face difficulty in getting the contents again and hence, in order to avoid returning of the article and on the hope that the said Devadoss would hand over the article to the complainant on good faith, the delivery staff effected delivery to the said Devadoss on 1.9.2012.  After one month, the complainant enquired with the regular Postman about arrival of any letter to his name who in turn informed the fact after confirming from A. Raja, that the said letter was given to the close relative of the complainant.  Only then, the complainant preferred written complaint dated 9.10.2012 to the opposite parties.  On receipt of the said complaint, the speed post article was collected from the recipient and kept at Karaikal MDG and the status of the article was informed to the complainant.  The complainant was asked by the second opposite party to collect the article from the Karaikal Office as he could not be traced at his new address, over phone as well as through letter dated 13.10.2012, for which the complainant replied that he is working in a far off place from Karaikal and would come to Karaikal only at week end or once in 15 days and he is undergoing some medical treatment and would not able to come and collect the article at once and also informed that he would collect the article at his convenience, but did not come for a longer time and no reply was received to Opposite Party No.2's letter.  Hence, the speed post article was sent out for delivery through Postman on 2.11.2012 to the complainant but it was refused by his family members.  Even though on receipt of letter dated 6.11.12 of opposite party No.1, there is no response from the complainant.  Hence, the article was dispatched to the complainant in pro cover through service registered letter dated 21.12.2012 and the same was delivered on 24.12.2012 and therefore, there is no deficiency of service by the opposite parties.  Hence, prayed for dismissal of the complaint.

4.         Points for determination are:

            1. Whether the complainant is the Consumer?

            2. Whether any deficiency in service attributed by the Opposite Parties?

            3. To what relief, the complainant is entitled for?

5.         Point No.1:

            The complainant is the addressee of a letter sent by State Bank of Travancore, Mumbai and admitted the same by the Opposite Parties.  Thus, the complainant is the beneficiary of the service rendered by the Opposite Parties.  Hence, the complainant is the consumer of the Opposite Parties.

6.         Point No.2:

            We have perused the entire records, the complaint, reply version, exhibits, evidence of both the parties and heard the arguments.  The complainant submitted that the State Bank of Travancore, Mumbai dispatched ATM-cum-Debit Card on 26.08.2012 to the address given as No.8, Kammalar Street, Karaikal.  The complainant further submitted that he has shifted his residence temporarily to the new house bearing door No. 49/C, Moulasa Maraicar Street, Karaikal within the service jurisdiction of the Opposite Party No.2 and it was informed to the Opposite Party No.2.

7. The complainant alleged that the Opposite parties have delivered the spped post Article to one third person who is not a relative to him.  The complainant further alleged that the Opposite Party No.2 has received the speed post Article on 1.9.2012 and it was delivered to him only on 24.12.2012 with a delay of 114 days.  The complainant submitted that during the first week of October 2012, he has shifted the residence and due intimation Ex.C10 was given to the Opposite Party No.2 on 9.10.2012.  The complainant relied the Ex.C5 the letter sent by him to Opposite Parties requesting them to deliver the article to him at the new address and Ex.C7 the Advocate notice issued for deficiency in service. 

8. The Opposite Parties submitted that one Speed Post letter bearing No. EK982165480IN was received from State Bank of Travancore, Mumbai by the 2^nd opposite party on 01.09.2012 addressed to the complainant's name at old address No. 8, Kammalar Street, Karaikal which is the permanent address of the complainant and the complainant shifted his residence about three years ago to 49/C. Moulasa Maricar Street without giving any instruction letter to the second opposite party.   Later, on 9.10.2012 only, the complainant gave instruction letter for change address whereas, the speed post was received by the 2^nd opposite party only on 01.09.2012, hence, it was not possible for the second opposite parte to redirect the said article as per the said instruction letter of the complainant which was given belatedly.  Further it is submitted by the Opposite parties that  on 1.9.2012 the regular Post Man was on leave and hence, one A. Raja, the Stamp vendor of his office was engaged on that day in the place of regular Postman who while delivering the said speed post noticed the door was locked and on enquiry with one S. Deva Doss, the person at Opposite House about the whereabouts of the complainant, the said Devadoss replied that the complainant is his brother and that he has shifted the residence, but the correct address is not known to him.  The said Devadoss who  is the alleged brother of the complainant asked the delivery staff to give the speed post and he would hand over the same to the complainant.  Since the speed post article was booked at Manipal Post Office and if the said article was returned to sender as "Unclaimed", the complainant would face difficulty in getting the contents again and hence, in order to avoid returning of the article and on the hope that the said Devadoss would hand over the article to the complainant on good faith, the delivery staff effected delivery to the said Devadoss on 1.9.2012.  It is alleged by the Opposite Parties that after one month, the complainant enquired with the regular Postman about arrival of any letter to his name who in turn informed the fact after confirming from A. Raja, that the said letter was given to the close relative of the complainant.  Only then, the complainant preferred written complaint  Ex.C10 dated 9.10.2012 to the opposite parties.  The Opposite parties further stated that on receipt of the said complaint, the speed post article was collected from the recipient and kept at Karaikal MDG and the status of the article was informed to the complainant.  Further, it is alleged by the Opposite Parties that the complainant was asked by the second opposite party to collect the article from the Karaikal Office as he could not be traced at his new address, over phone as well as through letter dated 13.10.2012, for which the complainant replied that he is working in a far off place from Karaikal and would come to Karaikal only at week end or once in 15 days and he is undergoing some medical treatment and would not able to come and collect the article at once and also informed that he would collect the article at his convenience, but did not come for a longer time and no reply was received to Opposite Party No.2's letter.  Hence, the speed post article was sent out for delivery through Postman on 2.11.2012 to the complainant but it was refused by his family members.  It is also submitted by the opposite parties that even though on receipt of letter Ex.C8  dated 6.11.12 of opposite party No.1, there is no response from the complainant.  Hence, the article was dispatched to the complainant in pro cover through service registered letter Ex.C9  dated 21.12.2012 and the same was delivered on 24.12.2012 and therefore, there is no deficiency of service by the opposite parties.

            9. From the above facts and material, we ascertained that the State Bank of Travancore sent a speed post letter to the complainant containing the address as No.8, Kammalar Street, Karaikal on 01.09.2012.  The Opposite Party No.2 has taken effort to deliver the Article to the complainant in the said address.  As per the statement made by the Opposite Party No.2, the addressee door was closed on that day.  On enquiry made with the neighbour one Devadass, the Opposite Party No.2 has delivered the Article to the said Devadoss.  The Opposite Party No.2 has relied the Ex.R8 for the same.  The Opposite Party No.2 has stated in their reply that the Article showed was served to the address not to the addressee.  If it is not served to the address, it should be returned to the sender as "Unclaimed" and the complainant should face difficulties in getting the Article again.  In order to avoid returning the article and on hope that the said Devadoss would hand over the article to the complainant on good faith, the article was served.  The Opposite Parties have taken the plea that the complainant never intimated the change of address as required by the Postal Authority before 09.10.2012.  The Opposite Party No.2 immediately attempted to deliver the article to the complainant and sent Ex.C6 on 13.10.2012 for which the complainant replied that he will collect the Article at his convenience.  The Opposite Party No.2 has taken the effort to deliver the Article at the new address, but the family members refused to receive the Article on 2.11.2012.  The Opposite Party again taken steps to intimate the same to the Counsel for the complainant by Ex.C8 and requested the complainant to collect the Article.  As there is no response from the complaint, the Opposite Party No.2 has delivered the article vide Ex.C9 on 24.12.2012 in the new address.  The complainant/CW1 deposed in his cross-examination that " It is true that I have intimated about the change of address to the Opposite Party after lapse of one month from the date of delivery to the said letter.  It is true that I have not mentioned in Ex.C7 the specific date on which I shifted my house from Kammalar Street to Moulana Maricar Street.  It is true that during the delivery of the said letter while I was residing at Moulana Maricar Street my family members reufsed to receive the letter".  The complainant has not intimated the new address to the Opposite Parties in time.  Hence, it is clear that the Opposite Party No.2 has taken all the effort to delivery the article to the complainant. The complainant has not established that the Act of the Opposite Parties has been caused fraudulently or by willful act or default.

            10. The Opposite Parties have relied the Authority of the Hon'ble National Consumer Disputes Redressal Commission in Revision Petition No. 986/1996 and Revision Petition No. 2411/2006.  This Forum relied the recent Judgment rendered by Hon'ble National Consumer Disputes Redressal Commission in Revision Petition No. 535/2015 [INDIAN POSTAL DEPARTMENT, HEAD POST OFFICE VS AMITABH SRIVASTAVA – 2015 (2) CPR 308 (NC)], wherein the observation made as

            The Present case swirls around the question regarding the bar created by section 6 of the Indian Post Office Act, 1898.  The said section runs as under:

        "Sec. 6. Exemption from liability for loss, misdelivery, delay or damage.  The [Government] shall not incur any liability by reason or 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"

and also observed,

        "……Post office is not a common carrier, it is not an agent of sender of postal article for reaching it to addressee – It is a branch of public service, providing postal services subject to provisions of Indian Post Office Act and rules made thereunder – Services rendered by Post Office are merely statutory and there is no contractual liability".

“The services rendered for the Post Office are merely statutory and there is no contractual liability. Establishing the Post Offices and running the postal service the Central Government performs a governmental function and the Government does not engage in commercial transaction with the sender of the article through post and the charges for the article transmitted by post is in the nature of charges posed by the State for the enjoyment of the facilities provided by the Postal Department and not in consideration of any commercial contract. The Post Office cannot be equated with a common carrier.”

Hence, the Opposite Parties are not liable for any deficiency in service as prayed by the complainant.

            11.  Point No.3:

            In view of the decision taken in Point No.2, the complainant is not entitled for any relief as prayed.  Hence, this complaint is hereby dismissed.  No costs.

Dated this the 28^th day of August 2015.

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

MEMBER

COMPLAINANTS' WITNESS:  

CW.1              23.05.2014                S. Pushparaj 

OPPOSITE PARTY'S WITNESS: 

RW1               27.02.2015                K. Manoharan, Sub Post Master

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTY'S EXHIBITS:

LIST OF COURT EXHIBITS:   NIL

( A. ASOKAN )

PRESIDENT

(V.V. STEEPHEN)

MEMBER