IN THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, MURSHIDABAD AT BERHAMPORE.

                CASE No.  CC/67/2019.

 Date of Filing:                    Date of Admission:             Date of Disposal:

   30.05.19                                     12.06.19                                     29.06.22

Complainant: Hazarat Ali Seikh

                        S/O Denjur Ali Seikh,

           18/11, K.K. Banerjee Road,

         PO&PS-Berhampore, Pin-742101

-Vs-

Opposite Party: 1.The Branch Manager, State Bank Of India,

                ADB Berhampore Branch 

           PO&PS-Berhampore, Pin-742101

           2. The Post Master, Berhampore Post Office

        PO&PS-Berhampore, Pin-742101

         3. The Branch Manager,

       State Bank Of India, Katwa Branch

     PO&PS-Katwa,

    Pin-713130

    4. The POst Master, Katwa Head Post Office

PO&PS-Katwa, Pin-713130

    5. The Post Master, Kalna MDG (Head Post Office)

PO&PS-Kalna, Pin-713409

Agent/Advocate for the Complainant                        : Srabani Das

Agent/Advocate for the Opposite Party No.1 : Satinath Chandra

Agent/Advocate for the Opposite Party No.2 : S.S.Dhar

Agent/Advocate for the Opposite Party No.3 : None

Agent/Advocate for the Opposite Party No.4 : None

Agent/Advocate for the Opposite Party No.5 : None

                       Present:   Sri Ajay Kumar Das………………………….......President.     

                                      Sri. Subir Sinha Roy……………………………….Member.                        

                                       Smt. Aloka Bandyopadhyay……………………..Member.

FINAL ORDER

   Sri.Ajay Kumar Das, Presiding member.

This is a complaint under section 12 of the CP Act, 1986.

            One Hazarat Ali seikh (here in after referred to as the Complainant) filed the case against The Branch Manager, ADB Berhampore Branch and Ors. (here in after referred to as the OPs) praying for compensation alleging deficiency in service.

The sum and substance of the complaint case is as follows:-

            The Complainant had withdrawn a cheque bearing No. 018452 dated 06.11.18 of Rs.80,536/- from Kalna Post Office against KVP maturity being registration No. 117855,116828 and 117053 on 22.11.18. Thereafter the cheque was deposited at SBI ADB Branch on 29.11.18 and was shown in the Pass Book of the Complainant bearing A/C No.11608953293 but the amount was not credited to the SB account till now. After three months i.e. on 25.02.19 the Complainant filed a written complaint and requested the Branch Manager, SBI ADB Berhampore for the encashment of the cheque. They informed the Complainant that the cheque was sent to SBI Katwa Branch for clearance through Berhampore Head Post Office and they issued a letter to the Post Master on 25.02.19 with the photocopy of the envelope containing cheque registered through post vide RW276122177IN, IVR: 8287276122177 on 03.12.18.

            The track consignment of the Post Office i.e. consignment No. RW276122177IN was booked at Darjeeling HO, booked on 15.12.18 at 12.16.21 and delivered in the wrong location i.e. Sonada SO on 19.12.18 at 19.03.48. Hence, due to the deficiency of service of the Post Office the Complainant is incurring for losses and harassing from 22.11.18.

            The Complainant prays for getting relief of Rs.80,536/- on the basis of his cheque bearing No. 018452 of SBI Katwa Branch with interest @ 10% from the date of issue of the cheque along with compensation of Rs.50,000/- for mental pain and harassment and Rs.20,000/- for deficiency of service and litigation cost.

            The OP No.1, Branch Manager, SBI, ADB Berhampore is contesting the case by filing written version stating inter alia that this OP has complied all the necessary formalities towards encashment of the cheque along with all documents through registered post on 03.12.18. It appears from the track record that the consignment was wrongly delivered to different place by the Postal authority.

            On 25.02.19 this OP No.1 requested the Post Master, Berhampore Post Office to follow up the matter by which the cheque might be delivered to the proper addressee, Branch Manager, SBI Katwa. Thereafter, on 11.04.19 this OP No.1 also issued another letter to the Post Master, Berhampore Post Office by which they informed again that the cheque has not been delivered to the addressee nor returned to the sender.

            On 14.06.19 the Postal authority by issuing a letter stated that they had delivered the consignment on 19.12.18 at Katwa Post Office but the Postal authority avoided to explain the matter that why the consignment has not been delivered to the proper addressee i.e. SBI Katwa Branch.

            There is no negligence and deficiency of service on the part of the OP No.1. So, the complaint case is liable to be rejected against this OP.

            OP No. 2 Post Master Berhampore Post Office is contesting the case by filing written version. They have stated inter alia that there is no negligence on the part of this OP. The liability of the Post Office is not contractual but statutory. As per provisions of Section 6 the Government shall not incur any liability by reason of loss, misdelivery or delay in delivery of article unless there is any willful act of default on the part of the Post Office.

            In the instant case, there is no negligence on the part of this OP. The Complainant never paid any postal charges. So, the Complainant cannot be treated as a Consumer to this OP.

            The point to be noted is that OP No.3, Branch Manager, SBI Katwa and OP No.4, Post Master, Katwa Post Office received notice as his evident from the AD Card but they have not entered appearance in this case. It is also to be noted that OP No.5. Post Master, Kalna MDG received notice and thereafter they sent e-mail to the SSPOS, Burdwan Division with a copy to the President of this District Commission where in we found, ‘’ The Complainant is not encashment of one cheque bearing No. 018452 dated 06.11.18 of Rs. 80,536/- (Eighty Thousand Five Hundred Thirty Six only) p/t Hazrat Ali Seikh.

            As per office records the said cheque was issued in f/o Hazrat Ali Seikh on 06.11.18 against KVP maturity regn No. 117855, 116828,117053 respectively.

            Kindly take n/a. The matter is most urgent.’’

On the basis of the complaint and the written versions the following points are framed for proper  adjudication of the case :

Points for decision

1. Isthe Complainant a consumer under the provision of the CP Act, 1986?

2. Has this Forum jurisdiction to entertain the complaint?

3. Has the OP any deficiency in service, as alleged?

4. Is the Complainant entitled to get any relief, as prayed for?

Decision with Reasons:

Point Nos. 1,2,3,4&5

The Complainant has filed his examination in chief and the written notes of argument. OP No.s 1 &2 filed their written versions on affidavit. The case is being proceeded ex-parte against the OP No.3,4 & 5.

All the points are taken up together for the sake of convenience and brevity of discussion.

             The Complainant has stated in his complaint that he had withdrawn a cheque bearing No. 018452 dated 06.11.18 of Rs.80,536/- from Kalna Post Office against KVP maturity being registration No. 117855,116828 and 117053 on 22.11.18. Thereafter the cheque was deposited at SBI ADB Branch on 29.11.18 and was shown in the Pass Book of the Complainant bearing A/C No.11608953293 but the amount was not credited to the SB account till now. After three months i.e. on 25.02.19 the Complainant filed a written complaint and requested the Branch Manager, SBI ADB Berhampore for the encashment of the cheque. They informed the Complainant that the cheque was sent to SBI Katwa Branch for clearance through Berhampore Head Post Office and they issued a letter to the Post Master on 25.02.19 with the photocopy of the envelope containing cheque registered through post vide RW276122177IN, IVR: 8287276122177 on 03.12.18.

            The said fact is not denied. Moreover, this face is supported by the examination in chief of the Complainant and the documents filed It is also to be noted that OP No.5. Post Master, Kalna MDG received notice and thereafter they sent e-mail to the SSPOS, Burdwan Division with a copy to the President of this District Commission where in we find, ‘’ The Complainant is not encashment of one cheque bearing No. 018452 dated 06.11.18 of Rs. 80,536/- (Eighty Thousand Five Hundred Thirty Six only) p/t Hazrat Ali Seikh.

            As per office records the said cheque was issued in f/o Hazrat Ali Seikh on 06.11.18 against KVP maturity regn No. 117855, 116828,117053 respectively.

            Kindly take n/a. The matter is most urgent.’’

            So, it is clear that the Complainant has not received the cash of Rs.80,536/- till now for the cheque bearing No. 018452 dated 06.11.18 which was issued by Kalna Post Office.

            Ld. Advocate for the OP No.2 submits that the Complainant never paid any postal charges. So, the Complainant cannot be treated as a consumer to this OP.

            The point to be noted is that Kalna Post Office issued the cheque in question and that cheque is not encashed till today. So, the Complainant is a consumer to the Postal Dept. till today.

            On the contrary it is found that the Complainant deposited the cheque in question with the SBI ADB Branch Berhampore in the S/B A/C No. 11608953293. This account is maintained by the Complainant with the SBI ADB Branch, Berhampore. So, the Complainant is also a consumer to the SBI.

            Ld. Advocate for the OP No.2, Branch Manager, SBI ADB Berhampore has submitted that on 11.04.19 this OP No.1 also issued another letter to the Post Master, Berhampore Post Office by which they informed again that the cheque has not been delivered to the addressee nor returned to the sender. The said letter is annexed as Annexure C.

            OP No. 1 has further stated that on 14.06.19 postal authority by issuing a Letter stated that they have delivered the consignment on 19.12.18 at Katwa Post Office. The said Letter is annexed herewith as Annexure D. But the Postal Authority avoided to explain the matter why the consignment has not been delivered to the proper addressee i.e. SBI, Katwa Branch.

            After hearing the Ld. Advocate of the OP No.1 we peruse the materials on record and the Annexure C & D. We find substance in the submissions made by the Ld. Advocate for the OP No.1 and we find that there is no deficiency of service on the part of OP No.1.

            Ld. Advocate for the OP No.2 submits that there is no negligence on the part of this OP. That the liability of the Post Office is not contractual but statutory. As per Provision of Sec-6 the Government shall not incur any liability by reason of loss, misdelivery or delay in delivery of article unless there is any willful act or default on the part of the Post Office. In the instant case there was no negligence on the part of this OP.

            In a number of cases, it has been noticed that the Postal Dept. has been taking shelter under the provisions of section 6 of the Indian Post Office Act which was enacted as far back as 1898 when the then Government of the day acquired total immunity for any action of the Postal Dept. resulting in  loss to the consumer. This section provides that the Government shall not incur any liability by reasons 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 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. It follows that no claim will be against the Postal Dept. merely on the ground that there has been loss, misdelivery, delay or damage to any postal article in the course by transmission by post. However, if there is any fraud or willful act or default on the part of any postal official, he will be personally liable thereof- Surinder Singh Vs. Post Master General, Panaji (1991) 1 CPR 430 ( Goa CDRC).

            In the instant case it is not established that there is any fraud or willful act or default on the part of any postal employee.

            The facts and circumstances suggest that the cheque bearing No. 018452 dated 06.11.18 of Rs. 80,536/- is missing for the gross negligence of the Postal Dept. though it is not established that there is any fraud or willful act or default on the part of any postal employee. And it may be presumed that the validity period of the said cheque has already been lapsed.

            In view of the matter discussed above, we are of the view that the instant complaint case be and the same is allowed in part.

Reasons for delay

The Case was filed on 30.05.19 and admitted on 12.06.19. This Commission tried its level best to dispose of the case as expeditiously as possible in terms of the provision under section 13(3A) of the CP Act,1986. Delay in disposal of the case has also been explained in the day to day orders.

In the result, the Consumer case is allowed in part.

     Fees paid are correct. Hence, it is

Ordered

that the complaint Case No. CC/67/2019 be and the same is allowed in part on contest against OP No.1&2 and ex-parte against OP No.s 3,4&5 but under the circumstances without any costs.

        OP No.5 the Post Master, Kalna MDG (Head Post Office), PO&PS-Kalna, Dist-Burdwan, Pin-713409 is directed to issue a fresh cheque including up to date interest instead of the missing cheque bearing No.018452 dated 06.11.18 of Rs. 80,536/- in favour of the Complainant within 30 days from the date of this order.

        The Complainant will be at liberty to deposit the new cheque in his account of SBI ADB Berhampore and if the Complainant does so, the OP No.1 i.e. Branch Manager, SBI ADB Berhampore will engage a special messenger if needed for the clearance of the new cheque and to credit the amount of new cheque in the account of the Complainant on war footing basis.

        Let plain copy of this order  be supplied free of cost, to each of the parties / Ld. Advocate/Agent on record, by hand  /by post under proper acknowledgment  as per rules, for information and necessary action.

The Final Order will also be available in the following Website:

    confonet.nic.in