Tripura

StateCommission

A/31/2021

Smt. Moumita Roy - Complainant(s)

Versus

The Chief Postmaster - Opp.Party(s)

Mr. Kumar Sankar Sarma, Mr. Debal Saha

19 May 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION

TRIPURA: AGARTALA

 

CASE NO.A.31 OF 2021

Smt. Moumita Roy,

D/O Sri Uddipanta Narayan Roy of

North Banamalipur, Agartala,

P.O . Agartala, P.S. East Agartala

Dist- West Tripura,  Pin-799001.

 …………….Appellant

 

 

Versus

1. The Chief Postmaster,

Bhuj Head Post Office, Gujarat,

Bhuj, Kachchh, Gujarat,

Gujarat -370001

 

2. The Chief Postmaster,

Ahmadabad Head Post Office of Ahmadabad City,

Ahmadabad, Pin-380001.

 

 

3. The Postmaster,

Agartala Head Post Office,

Agartala, Tripura(W)

Pin-799003.

 

 

4. The Proprietor,

Kutch Hastkala of Anam Ring Road,

Nr. Rajlaxmi Furniture,

Bhuj-Kutch, Gujarat, Pin-370001                

          …………….Respondents

 

 

BEFORE

HON’BLE MR. JUSTICE ARINDAM LODH

MR. KAMALENDU BIKASH DAS

 

For Appellant(s)               :        Mr. Debal Saha, Advocate                                               

For Respondent(s)           :        Mr. Biswanath Majumdar, CGC

 

Date of hearing & delivery

of judgment and order     :        19.05.2022

 

Whether fit for reporting  :        YES

                                                                                                                                                                                                                                                 

 

 

 

JUDGMENT & ORDER(ORAL)

 

 

                   Heard Mr. Debal Saha, learned counsel appearing for the complainant-appellant as well as Mr. B. Majumder, learned CGC appearing for the respondents-Union of India.

2.             The case of the appellant, in brief, is that she purchased some articles from the respondent No.4 who had sent the articles to the address of the appellant through Bhuj Head Post Office, a Central Government Organization under the Indian Postal Department. But it was not delivered. The appellant had requested the Postal Department through Agartala Head Post Office which is situated within the jurisdiction of the District Commission, West Tripura, Agartala to deliver the articles. The Post Office advised her to register an online complaint in its portal. Accordingly, the complainant registered a complain to the Postal Department for non-delivery of the articles in connection with the consignment No.CG319583978IN dated 19.06.2019 through online and the said complaint was registered as public complaint vide complaint No.10009389358 dated 10.07.2019. Thereafter, the Postal Department had responded to the said complaint stating, inter alia, that “As the article has not been delivered and is still not traceable. Hence, claims may be closed by treating the article to be lost and the seller of the articles may claim compensation at booking office which would be paid as per rules”.  

3.             Mr. Saha, learned counsel appearing for the appellant would contend that the Postal Department appeared to be negligent in providing appropriate service to its customer. They paid no heed to trace out the documents and they were not serious about the matter. As such, the deficiency in service on the part of the Postal Department is apparent on the face of the record.  

4.             On the other hand, Mr. Majumder, learned CGC appearing on behalf of the respondent-Postal Department has submitted that the District Commission, West Tripura, Agartala has no jurisdiction to entertain the complaint made by the complainant. According to Mr. Majumder, learned CGC, the cause of action arose in Bhuj District, which is within the jurisdiction of District Commission, Bhuj District, State of Gujarat. So, complaint, if any, it ought to have been raised before the District Commission under which the Bhuj Head Post Office is situated.

                Mr. Majumder, learned CGC has further submitted that the Central Government or its Postal Department and its officers are not liable to compensate for the loss, mis-delivery or delay or damage to any postal article/s in course of transmission by post in view of Section 6 of the Indian Post Office Act, 1898, unless the loss is caused by some fraudulent or by willful act or default by any staff of the Postal Department. Mr. Majumder, learned CGC referring to Section 6 of the Indian Post Office Act has submitted that Section 6 gives complete immunity to the Government and its employees except in the case specified therein.  

5.             While deciding the complaint case, the learned District Commission referring to Section 6 of the Indian Postal Act and placing reliance upon the judgment passed in case No. A/37 of 2018(Post Master vs. Sri Suman Bepari) dismissed the complaint made by the complainant. Relevant portion of the said judgment as referred to and quoted by the learned District Commission, West Tripura may be reproduced here-in-below, in extenso, for convenience:

        “The Hon’ble State Consumer Disputes Redressal Commission, Tripura, Agartala in case No.A/37 of 2018(Post Master vs. Sri Suman Bepari) decided that “in view of the Section 6 of the Indian Post Office Act and the rules thereunder, the Government shall not incur any liability by reason of the loss of any postal article in course of transmission by post unless such loss caused due to fraudulent action or willful act or default of the Postal Authority”.

                The learned District Commission had further observed that:

        “The liability of Post Office is not contractual, but statutory. The Post Office is the department of the Central Government and it is not a common carrier”.

                Reliance being placed on the above quoted propositions, learned District Commission dismissed the complaint filed by the complainant as not maintainable with the below-noted observations:

        “7. In the instant case, the Complainant failed to prove that the article was lost due to fraudulent action or willful act of the Postal Authority. Considering the settled principle of law we are in the opinion that the decision mentioned above are squarely applicable in the instant case. So, we are in the opinion that the complaint is not maintainable in law.

Hence, the complaint petition is dismissed & no costs.”

6.             We have carefully perused the said judgment passed by the learned District Commission. Before we enter into the merits of the submissions advanced by the learned counsels appearing for the parties, it would be apposite to quote Section 6 of the Indian Post Office Act, 1898, which reads as under:-

“6. Exemption from liability for loss, misdelivery, delay or damage.- 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 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.”

 

7.             In our considered view, it would be unwise to hold that when the Legislature had enacted Consumer Protection Act, 1986 as amended time to time, they were unaware of the Indian Post Office Act, 1898. The Legislatures intended to bring “The Consumer Protection Act, 1986” into force only for better protection of the interests of the consumers and for the purpose of making provision for establishment of Consumer Protection Councils and other authorities for the settlement of consumer disputes, etc. Today’s market place contains a plethora of products and services. As such, consumer markets for goods and services have undergone drastic transformation since the enactment of “The Consumer Protection Act in 1986”. 

8.             In this era of computerization, it is expected that the postal authorities are supposed to act with precision and efficiency. Citizens of this nation keep faith on the Postal Department. When the citizens of this nation keep faith on the Postal Department as one of the principal service provider and book articles for transmission, then, it is the obligation of the Postal Authority and its staff to take the matter more seriously, transparently and cautiously.

9.             The different policies of the Government of India crystallize that it wants to have a vibrant Post Office. There are many other agencies which are dedicatedly rendering their services to their customers. As such, in this competitive world, the Indian Posts will only survive if it can earn faith and belief that it is equally competent, rather to say, it can provide much better service than others.

10.           In our opinion, Section 6 of the Post Office Act is aimed to provide a safeguard to the Government in case it fails to deliver goods or articles or cause delay or damage to such goods or articles due to such circumstances which were totally beyond the control of the Postal Department. Such circumstances, for example, may be an act of God, natural calamities or sudden fire or similar such circumstances.

11.           A plain reading of Section 6 of the Indian Post Office Act manifests that the protection is intended for the benefit of those who have committed bona fide mistakes, but, it would be wrong to hold that the said provision is intended to shield those who are guilty of dereliction of duty and callous in difference in performance of their functions. We re-affirm that Section 6 does not provide a windscreen to the Postal authorities and its staffs to justify all acts of negligence, remissness, inaction, etc. on their part in discharge of their official duties. Non-delivery of articles to the addressee, in our opinion, clearly demonstrates a willful act of deficiency in service to their customers.

                Furthermore, the Indian Post Office Act is more than 100 years old. By that time, modernized forms of delivery of packets/consignments through various means were not even in contemplation in those days.

12.           The plea taken by the Postal Department in the instant case, if entertained, then, no consumer would approach the Postal Department to book their goods/articles, and ultimately, would affect the business transactions of the Postal Department, causing huge loss not only to the Postal Department but also to the Government. Ultimately, survival of the Postal Department would be a big question, which will apparently damage the face of the Government. To get the benefit of Section 6 of the Indian Post Office Act the Postal authorities have to justify that they have adopted the proper procedure to pinpoint the delinquent employee.   

13.           A plain reading of the definition of “consumer” crystallizes that the consumer has to buy any goods for a consideration which has been paid or promised or partly paid and partly promised. Furthermore, the complainant would be a consumer when he/she avails of any service for a consideration which has been paid or promised.

14.           In the instant case, the complainant booked some articles on 19.06.2019 amounting to Rs.3,500/-. The complainant also paid Rs.150/- against shipping charge through the OP No.4. The OP No.4 sent the said article in favour of the complainant at her address through registered post. The OP No.4 sent the postal receipt vide no.CG319583978IN dated 19.06.2019 to the complainant. There is no dispute that the article was duly booked from the Bhuj Post Office.

14.1.         From the aforesaid facts it is aptly clear that the complainant had bought the articles for a consideration and availed the services of the Postal Department(India Post) for which the postal charge was paid. Having paid for the services, the complainant is a consumer within the meaning of Section 2(1)(d)(ii) of the Act, 1986. As such, the complainant is a consumer.

14.2.         Sub-clause (9) of Section 2 of C.P. Act includes services and the right of the consumer is protected.

14.3.         Sub-clause (38) of Section 2 defines “product service provider” which means a person who provides any service in relation to product. As such, the Postal Department is a service provider in respect of the product i.e. the articles the complainant booked. Product means any article or goods [sub-clause (33) of Section 2].

14.4.         Sub-clause (19) of Section 2 of C.P. Act defines “establishment” which includes public utility entities as are prescribed under the Consumer Protection(General) Rules, 2020[for short, C.P. Rules, 2020].

14.5.         Sub-Rule (b) of Rule 2 of the C.P. Rules, 2020 defines ‘public utility service’ which reads as under:

“(b) ‘public utility service’ means any—

1. xxx                xxx           xxx           xxx
2. Postal, telegraph, telephone or broadband service;
3. xxx                xxx           xxx           xxx
4. xxx                xxx           xxx           xxx
5. xxx                xxx           xxx           xxx” 

 

14.6.         Rule 3 of C.P. Rules, 2020 reads as under:-

“3. Public utility services to be establishments.—Public utility services shall be establishments for the purpose of Clause (19) of Section 2 of the C.P. Act, 1986.”

14.7.         A joint reading of sub-clause (ii) of Sub-Rule (b) under Rule 2 and Rule 3 of C.P. Rules, 2020 makes it crystal like clear that the Postal Department is an establishment providing public utility services.

14.8.         Again, clause (37) of Section 2 of the C.P. Act defines “product seller” which includes a service provider[sub-clause (ii)].

                Therefore, the Postal Department can also be treated as “product seller” being a service provider to its consumer in relation to any product.

14.9.         Clause (37) of Section 2 of the C.P. Act defines “service” which means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of persona service.

14.10.       From the definition of “service” as noted above, it is apparent that “service” means service of any description which is made available to potential users and is not limited to only the language of the words used in Clause (37) and aptly makes it clear that Postal Department is also a service provider and takes the responsibilities to render service to the people when articles or goods are booked after receipt of service charges or fees obligating it to deliver the said articles or goods to the addressee.

                Furthermore, we have already quoted the meaning of “public utility service” in the preceding paragraphs which includes Postal service also under Sub-Rule (b) of Rule 2 of the C.P. Rules, 2020.

14.11.       Clause (11) of Section 2 of the C.P. Act defines “deficiency”. From the definition of ‘deficiency’ it is clear that any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for any act of negligence or omission or commission which causes loss or injury to the consumer would entitle such consumer for “product liability action” under clause (35) of Section 2 of the C.P. Act i.e. such consumer can file a complaint before a District Forum or State Commission or National Commission, claiming compensation for the harm caused to him[‘harm’, clause (22) of Section 2 of C.P. Act] in relation to any product liability which includes (i) damage to any property and (iii) mental agony or emotional distress, etc. to the damaged property.

15.           In the instant case, the learned District Commission did not find any fraudulent or willful act on the part of the Postal Department. As such, the complaint petition was dismissed by the learned District Commission. But, having gone through the facts of the present case before us, we find that non-delivery of the articles to the complainant/appellant is a willful act on the part of the Postal Department and further Postal Department is found to be a defaulter of delivery of the booked articles to the complainant and, thus, the Department appears to be negligent and for such negligence, they are liable to pay compensation to the complainant as the complainant had full faith upon the Postal Department.

16.           In the instant case, there is no iota of evidence that on receipt of the online complaint, the Postal Authorities and the concerned staff had made any endeavour to trace out the articles booked by the respondent No.4 to transmit/deliver the same to the complainant. There is no such evidence adduced by the Postal Department that they had taken active steps and enquired into the matter. The Postal Department did not furnish any materials to enable us to come to a finding that non-delivery of the booked articles was not due to any “fraudulent” or “willful act” or “default” by its concerned officials.

                There is no evidence that the Postal Authorities have fixed responsibility against the erring staff for whose fault or negligence the articles could not be located. Further, it was not informed to the complainant under what circumstances the booked articles were lost and who was responsible for delivery of such articles. The Postal Department on receipt of the complaint simply had informed the complainant that it was not traceable. Such casual approach of the Postal Department, according to us, is unwarranted and unexpected to a consumer. The conduct of the postal authority and staff of the Postal Department aptly suggests that they are individually and severally defaulter in discharging their duties for which they are paid by the Government.  

17.           According to us, if such act or conduct is allowed, then, each and every “loss, mis-delivery, delay or damage” is to be considered to be not having been caused “fraudulently” or by “willful act” or “default” by officials of the Postal Department. Such a proposition of Section 6 of the Indian Post Office Act would be absurd. Further, Section 6 does not provide unfettered licence to the officials of the Postal Department and does not provide unquestionable immunity.   

                The onus to establish that the protection of Section 6 can be taken in the given facts and circumstances of a particular case, is on the Postal Department, which onus it has not discharged in this case.

18.           Here, we deem it pertinent to note that having realised the shortfalls in the Act of 1986 as well as the Act of 2019, the legislature has introduced the “Consumer Protection(General) Rules, 2020(for short, Rules of 2020), which came into force with effect from 20^th day of July, 2020, wherein Postal Services has been brought within the purview of the definition of ‘public utility service’[Clause(ii) of Sub-Rule (b) of Rule (2) of the Rules, 2020], and under Sub-Rule (3) of Rules, 2020, “Public utility services shall be establishments for the purpose of Clause(19) of Section 2 of the  Act, 2019”.

19.           Keeping in view the facts of the present case as discussed here-in-above, in our opinion, condoning such attitude of the Post office personnel, and mechanically applying the protection of Section 6 of the Act 1898, and outrightly overlooking the deficiency in service, the Act 1986 will defeat the purpose of both the relevant provisions of the Indian Post Office Act, 1898 and the relevant provision of the Consumer Protection Act, 1986.

20.           In the light of above discussions on both legal and factual aspects, the present appeal deserves to be allowed with the advice to the Postal Department to render quality service to its customers and imbibe responsibility and accountability of its officials and staffs. By such deficiency in service, the Postal Department has seriously caused harm to the complainant-appellant, and as such the appellant is necessarily to be compensated.

21.           Accordingly, we award a sum of (a) Rs.3,650/- against the value of the loss of articles, (b) Rs.20,000/- for mental agony, pain and sufferings, (c) Rs.20,000/- for cost of deficiency in service and (d) Rs.10,000/- as litigation cost. In total, the Postal Department, i.e. the respondents herein shall pay the above sum of Rs.53,650/- within a period of thirty days from the date of receipt of a copy of the judgment. The Government or the Postal authority may recover the said sum of Rs.53,650/-(Rupees fifty three thousand six hundred and fifty) only from the errant officials and staff responsible for the loss of articles of the complainant.  

22.           With the aforesaid observations and directions, the instant appeal stands allowed. The judgment passed by the learned District Commission stands set aside.

                Copy of this order may be supplied to the learned counsels for the parties.