FINAL ORDER
Samaresh Kumar Mitra, Member.
The case of the complainant’s in short is that a parcel was booked for him before the O.P. No.6 on 7.1.2017 at 15.47 hrs. bearing article No.E0856699695IN in 466gms and the charge of the parcel is Rs.104/-. On perusal the track report it was shown that he received the parcel on very belated stage i.e. on 18.1.2017. He went to Pravash Nagar S.O. to know about the delay. But Pravash Nagar S.O. misbehaved with him. The complainant further stated that O.P. department harassed the complainant about 13 days continuously. The complainant mailed complaints to the higher authority on 12.1.2017 and 18.1.2017. The OP misleading the complainant constantly, for which the complainant suffered mentally, socially and economically. The complainant prays before the OP to refund the sum of Rs.2,00,000/-, which he paid for his life risk.
The complainant performed his part of the contract in terms of the offer made by the OPs and the OPs made breach of contract as they failed to render the service to the complainant and also they did not refund the amount in time duly received by them. The complainant sent a demand notice to the OPs with registered post but there was no fruitful result.
The O.P. No.3 contested the case by filing written version denying inter-alia all the material allegations as leveled against him. This O.P. submits that the SPA bearing No.EO856699695IN was booked at Berhampur (GM) H.O. on 7.1.2017 and Rs.104/- tariff was charged for the said article. The bag containing the said SPA was received by MA Howrah RMS/3B on 8.1.2017 and the same bag was dispatched to Kolkata Airport sorting division on the same date. The SPA was sent to Mullickpara SO, as miss-sent by NSH Kolkata Airport on 10.01.2017 and finally the SPA in question was received by ICH, Howrah on 12.1.2017 and returned back to NSH Kolkata Airport on 13.1.2017. NSH Kolkata Airport returned the article to ICH, Howrah on 16.1.2017 and ICH, Howrah bagged the SPA in question for Pravashnagar S.O. on 17.1.2017 and the SPA was delivered from Pravashnagar S.O. to the address on 18.1.2017.
This O.P. further stated that complainant is not the sender of the SPA in question. He is the addressee. He did not pay any charge for the SPA. As such the complainant has no locus standi to file this case.
That there is no deficiency in service or negligence on the part of the Postal Department, hence, this O.P. prayed before this Forum to dismiss the instant complaint with cost.
The O.P. No.6 also contested the case by filing written version denying inter-alia all the material as leveled against him. This O.P. submit that one Shankar N.Panigrahy, Premnagar, Berhampur has booked a speed post article at Head Post Office, Berhampur, bearing No.EO856699695IN on 7.1.2017. That on same day i.e. on 7.1.2017 the said article was dispatched for onward transmission to NSH, Berhampur vide Bag No.EBO0005170356, entered at Serial No.19/28. That on 7.1.2017 the said article was received by NSH, Berhampur and on the same day it was bagged to NSH, Kolkata Air Port vide Bag No.EB00007906949 entered at Serial No.14/17 by NSH, Berhampur on dated 7.1.2017 for onward transmission. It is not a fact that the said Shankar N.Panigrahy has booked an Express Parcel as stated in the complaint.
This O.P. further stated that he has dispatched the article for onward transmission for delivery at the destination on the date of booking i.e. 7.1.2017. That there is no delay on the part of OP No.6. It is further submitted that as per track consignment of India Post, the said article was delivered to the addressee on 18.1.2017 at 16.00 hrs.
This O.P. also stated that Sectsion-6 of Indian Post office Act grants complete immunity to Government of Liability for loss, mis-delivery, delay or damage to postal articles. In view of section-6 of Indian Post Office Act, the complaint petition is liable to be dismissed.
This O.P. further stated that it has been held by the Hon’ble Supreme Court of India, that the Post Office is not a common carrier; it is not an agent of the sender for sending of the postal articles to the addressee. It is submitted that the post office cannot be equated with a common carrier. In view of this the complaint petition is not maintainable and is liable to be dismissed.
The complainant filed evidence on affidavit which is nothing but the replica of complaint petition. The argument advanced by complainant and the advocate of the OP heard in full. The complainant and OPs both filed brief notes of argument which are taken into consideration for passing final order.
From the discussion herein above, we find the following Issues/Points for consideration.
ISSUES/POINTS FOR CONSIDERATION1).
Whether the Complainant is a ‘Consumer’ of the opposite party?
2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3).Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards the Complainant?
4).Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?
DECISION WITH REASONS
In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.
(1).Whether the Complainant Sri Om Jhawar is a ‘Consumer’ of the opposite party?
From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. The complainant herein is the consumer of the OP, as the sender paid the money to the OP authority for delivery an article to this addressee so he is entitled to get service from the OP as beneficiary.
(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
Both the complainant and opposite parties are residents/having office address within the district of Hooghly. The complaint valued Rs.2,00,000/- for loss sustained by the complainant and as compensation for mental agony and other expenses ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
(3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?
It appears from the case record and the documents as produced by the parties in dispute that the complainant being the addressee enquired before the opposite parties for getting the parcel send in his address after the elapse of stipulated period as it is stated in Indian Post Office Act,1898 then the OP No.2 misbehaved with this complainant. The complainant herein being a law knowing person fully aware of his right as well as duties of the service provider send a letter informing all the incidents took place to the upper authority i.e. the Chief Post Master General, Yoga Yog Bhawan, Kolkata-12 getting his letter dated 18.1.2017 remained silent. From the documents it is transparent that the complainant on several occasions informed the incident of misbehave by the O.P. No.2 to the upper authority but no action taken on the part of Postal Department lead this complainant to take the recourse of this Forum praying direction upon the O.P. It appears from the track consignment being No.EO856699695IN booked on 07.01.2017 at 17.02.46 hrs. at Berhampur(GM) H.O. booked through speed post articles. The item bagged for NSH Kolkata Air Port on the very day and NSH Kolkata Air Port received the impugned Parcel on 10.01.2017 and subsequently the bag containing the article of this complainant bagged for NSH Howrah on 13.01.2017. NSH Howrah received the same on 14.1.2017 and item again bagged for Prabasnagar S.O. on 17.1.2017. Later on 18.1.2017 Prabasnagar S.O. received the disputed item and delivered the same to this complainant. After perusing the track consignment it appears that the item booked on 07.01.2017 and it is delivered to the addressee on 18.1.2017. So, it is transparent that the said article received by the addressee after 11 days from the date of booking. But the rule of the India Post in case of booking speed post articles clearly speaks that speed post is a high speed service introduce by the department from 1st August, 1986. It offers a granted time bound delivery of mail. The inland speed post items are delivered with 24 to 27 hrs and international items within 48 to 72 hrs from the latest hours fixed for posting. As such the complainant being a patient suffering from different ailments used to receive medicine from sender of this article to cure his diseases due to delay for a prolonged period the complainant suffered agony and pain for which he rushed before the O.P. No.2 to get the parcel that contains his medicine. When he refused by the O.P. No.2 he informed the matter to the upper authority but his all efforts came into all in vain. For which he compelled to prefer the recourse of this Forum. The O.P. No.3 by filing written version denied the allegation leveled against him and averred that the SPA was booked at Berhampur (GM) H.O. on 07.01.2017 and tariff of Rs.104/- was charged for the said article. The article was received at Pravasnagar S.O. on 18.1.2017 and the same was delivered on the same day. So, there is no question of false commitment, mental, social and economic harassment.
The O.P. No.1 to 5 in their argument stated that the SPA bearing No.EO856699695IN was booked at Berhampur(GM)H.O. on 07.01.2017. The article was received by O.P. No.3, Sorting Division on 08.01.2017. As there was huge influx of mails at that point of time in Kolkata Air Ports Sorting Division, the article was sent to Mullickpara S.O. (O.P. No.4) on 10.1.2017 and ICH Howrah received the article on 12.01.2017 and further dispatched to Pravasnagar S.O. on 17.1.2017 as the delivery jurisdiction of the said article was rendered South Hooghly Postal Division.
The O.P. No.6 in his written version stated that one Shankar N.Panigrahy, Premnagar, Berhampur booked a speed post article at Head Post Office, Berhampur, bearing No.EO856699695IN on 7.1.2017. That on same day i.e. on 7.1.2017 the said article was dispatched for onward transmission to NSH, Berhampur vide Bag No.EBO0005170356, entered at Serial No.19/28. That on 7.1.2017 the said article was received by NSH, Berhampur and on the same day it was bagged to NSH, Kolkata Air Port vide Bag No.EB00007906949 entered at Serial No.14/17 by NSH, Berhampur on dated 7.1.2017 for onward transmission.
The O.P. No.1 to 5 further assailed that the prayer of the complainant is not specific. He prayed before Ld. Forum to pass order granting the reliefs as prayed in the petition of the complaint and also stated that in para-8 of the complaint petition the complainant stated that the OPs refund Rs.2,00,000/- paid by him. The averment is absolutely false and complainant is not the sender. He is the addressee. As the complainant paid nothing as charge for SPA so the complainant has no locus standi to file the instant complaint.
The complainant during the period of argument assailed that he paid the postal charges along with the cost of medicine to the sender and sender received the same to reciprocate his contract. So, complainant being beneficiary filed the instant complaint before this Forum and proved that 12 days time taken to receive the SPA from Berhampur to Prabasnagar S.O., Hooghly. Although there is a specific rule in respect of delivery of SPA i.e. for Inland Speed Post it is 24 to 27 hrs. and for International items within 48 to 72 hrs. So, more that 10 days delay has been caused for delivery of the said article. The Govt. of India framed rules to provide compensation to the consumers when a delay or damage etc. is caused due to causes beyond control of the authorities and we presumed that this rules were not at all framed to provide immunity to the defaulting and negligent officials against their faults. Therefore, this rule also provide no protection to the postal authorities in the instant case. The facts and circumstances of the instant case are attracted to Sahib Sigh’s case as well as Niranjan Sahu’s case. It is evidence on record that the O.Ps. has not been able to produce any report about the enquiry conducted by them with respect to the delay of delivery of the article at the destination. The OPs have tried to absolve themselves from their liability by taking shelter of Section-6 of Indian Post Office Act, 1898. If the article be time barred then the complainant would have lodged the opportunity. So, the delay in delivery is well established from the record as well as conduct of the O.P.
It is contended by the Ld. Counsel for the OP that in view of Sec. 6 of Post Office Act, the OP shall not incur any liability in respect of the delay in delivery or loss of article unless some willful and fraudulent act is not proved against the officials of the department. She also averred that addressee is not a consumer of OP. OP referred a decision of National Commission, Head Post Master Vs. Vijay Rattan Aggarwal , RP No.15 of 1997.
Now, the question is whether the willful act and willful default on the part of the opposite party is proved or not. In this context reference may be made to the judgment of the Hon’ble Tamil Nadu State Commission, Chennai reported as Post Master, Krishnagiri Post Office & Anr. Vs. P. Pasupathi II(2003) CPJ.
The moot question that arises for consideration in the light of legal provision as stated above is as to whether there is any material placed on record pointing out the practice of fraud or willful act or default on the part of any officer of the Post office in question in the case on hand. The further incidental question that may arise for consideration is as to what is the sort of proof of such aspects of the matter which is required to mulct liability either on the government or any officer of the post Office in question.
The general rule is that as and when any person likes the complainant coming forward with a complaint alleging the practice of fraud or willful act or default on any of the officer of the Post Office in question must have to prove the same in order to mulct liability upon such officer against whom the complaint is launched.
Having considered the facts and circumstances of the case and the rival contentions of the Ld. Counsel for the parties, we find force in the contention raised on behalf of the complainant. From the act and conduct of the opposite parties it is fully established that there is deficiency of service on the part of the opposite parties because there is no evidence on behalf of the opposite parties to show reason for the delay in delivering the article at the destination.
In view of our aforesaid discussion the deficiency of service on the part of the opposite parties stands proved on record and the same is not to be overlooked keeping in view the fact that the complainant suffered from mental pain and agony at the behest of negligence on the part of the opposite parties.
4). Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?
The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant established that O.P. No.3 & 5 are jointly responsible for delay in delivery the article addressed to whom. So, the Opposite Party No.3&5 could not avoid their responsibility of paying the claim of the complainant as ascertained by this Forum.
ORDER
Hence, it is ordered that the complaint case being No.54/2017 be and the same is allowed on contest against the Opposite Party No.3&5 with a litigation cost of Rs.3000/- payable to this complainant.
The Opposite Party No.3&5 are directed to pay jointly and/or severally a sum of Rs.7,000/- as compensation for harassment and mental agony to this complainant within 45 days from the date of final order.
The OP No.1,2,4 &6 are exonerated from this proceeding.
At the event of failure to comply with the order the Opposite Party No. 3&5 shall pay fine @Rs.50/- for each day's delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the Consumer Legal Aid Account.
Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary Post for information & necessary action
