IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 31st day of August, 2021
Present: Sri. Manulal V.S. President
Smt. Bindhu R, Member
Sri. K.M. Anto, Member
C C No. 71/2019 (filed on 15-05-2019)
Petitioner : Sebastian Kurian,
Advocate,
Kallil Building,
Collectorate P.O.
Kottayam – 686002.
Vs.
Opposite Parties : 1) The Post Master General,
Office of the Post Master General,
Central Region,
Kochi – 682 020.
2) Senior Superintendent of
Post Office, Kottayam Division.
(2nd additional opposite party
impleaded as per IA 84/19)
O R D E R
Smt. Bindhu R, Member
The complainant is a practicing lawyer. The complainant applied for the certified copies of certain records from the Additional Sessions Court, Kottayam for sending the same to Adv. Johnson Manayani of Kerala High Court on 21-12-2018. On the same day itself, he sent the said documents to the said Adv. Johnson Manayani on account of his urgency through speed post from Collectorate post office, Kottayam. While accepting the articles, the concerned officials of the post office assured that the articles would be delivered on 22-12-2018 forenoon positively. But it was delivered to the addressee on time so the complainant himself hired a taxi and proceeded to Kochi to hand over the photocopies of the said certified copies. The said articles were delivered only on 26-12-2018 to the addressee. Due to the latches to performance on the part of the opposite party, the complainant filed a complaint before the opposite party on 31-12-2018. On 7-01-2019 he got a reply stating that the complaint stands forwarded to the Senior Superintendent of Post Offices, Kottayam Division, who is the authority to settle the matter. But the said official never contacted the complainant and the complaint is filed for deficiency in service and consequential compensation.
Upon notice, opposite party one appeared and filed version. He filed an IA 84/19 to implead the Senior Superintendent of Post Office, Kottayam and along with the IA, the said person was impleaded as the 2nd additional opposite party.
Resisting the allegation in the complaint, the opposite party contented that the complainant had filed a complaint before the opposite party on 31-12-2018 in which he alleged inordinate delay in the delivery of speed post letter EL256445010IN sent by him on 21-12-2018 from Kottayam Collectorate SO to Adv. Johnson Manayani, Monastery Road, Ernakulam – 682 011. The opposite party forwarded the complaint to the Senior Superintendent of Post Office of Kottayam Division as the office of booking Kottayam Collectorate Post Office comes under Kottayam Postal Division. The complaint received at the office of the Senior Superintendent of Post Office on 22-01-2019 was registered in the web based complaint portal of India Post under number 686100-05002 to ascertain the disposal of the article under complaint. The said article was despatched to National Speed Post Hub, Kochi (NSH Kochi) on the same date of receipt duly invoiced in speed manifest dtd.21-12-2018. The bag containing the speed post article under complaint was routed through Kottayam RMS and the article has not suffered any delay at Kottayam RMS. As it was festive season there was continuous transfer of mails during December 2018. The mails received in bulk was cleared by arranging special sets even on Sunday at National Speed Post, Kochi. The article under complaint was received at Ernakulum Head Post Office on 24-12-2018 from National Speed Post Hub and delivered to the addressee on 26-12-2018. The service standards for delivery of speed post articles provided by Department of Posts, Citizen Charter is 1-4 days in the same state which exclude the day of posting, Sundays and Holidays and they denote maximum time and apply only to the articles booked before the cut-off time. Here, excluding 23-12-2018 (Sunday) and 25-12-2018, holiday in lieu of Christmas the article was delivered with D+3 well within the prescribed standards. As the article under complaint was delivered to the addressee within the prescribed delivery standards, the claim of the complainant for compensation for delayed delivery and other expenses cannot be acceded to. It is humbly submitted that the Scheme of Speed Post has been provided under Indian Post Office Rules 1933 by inserting Rule 66 (B) and these Rules are statutory. As per Gazatte Notification GSR 738 (e) dated 18th November 2013, under Rule 66 (B) clause b, all inland speed post articles shall be booked, transmitted and delivered in accordance with the norms determined by the Department, in this behalf and in case of delay in delivery of inland Speed post articles beyond the said norms, the compensation to be provided shall be equal to the speed post charges paid. Hence it is humbly submitted that as the article under complaint was delivered within the norms determined by the Department, no compensation shall be liable to be paid to the complainant by the Department. It is humbly submitted that section-6 of Indian Post Office Act 1898 read as “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 wilful act or default”. Honorable Forum may kindly note that there is no fraudulent or wilful act on the part of the opposite party or any other officials working under the opposite party in the instant case as the article was delivered to the addressee within the prescribed standards of delivery. Hence granting of compensation to complainant does not arise in this case. Section 6 of the Indian Post Office Act 1989 grants complete immunity to the Postal Department for the loss/misdelivery or damage to the Postal articles. The opposite party had correctly replied the complainant on 17-01-2019 that his complaint was forwarded to the Senior Superintendent of Post office, Kottayam Division for settlement of case and he may kindly await further communication from the Senior Superintended of Post Offices Kottayam Division. But the complainant has neither addressed nor contacted the office of the opposite party on a later date informing that his grievance remains unsettled. As the article was delivered to the addressee within the prescribed standards there is no grievance remains to be settled by the Department.
Complainant adduced evidence through proof affidavit and Ext.A1 to A6 were marked. Opposite party did not adduce any oral evidence. But only produced 3 documents which were marked as Ext.B1 to B3.
On perusal of the above evidence on record and pleadings, we frame the following issues:
1. Whether the opposite party has committed deficiency of service and if so
what are the reliefs?
The complaint is filed for compensation for the damages caused due to the delay in delivering the article by speed post sent by the complainant. The opposite parties’ contention is that the Post office is immunised by S.6 of the Indian Post office Act and the settled law from being liable for the delay or latches in the delivery of postal articles and hence there is no deficiency of service.
On going through the facts and evidence of the case, we find that the complainant has entrusted the articles which were some urgent court documents to be produced before the Honorable High Court by another advocate on 21.12.2018 by speed post with the opposite parties. Though the complainant got assurance of delivery on 22.12.2018 forenoon, it was delivered only on 26.12.2018.As it was not delivered on the assured date, the complainant had to hire a taxi and take the Photostat copies to Ernakulam.
Moreover, the complainant lodged a complaint against this delay before the 1st opposite party on 31.12.18 but he only received a letter that the complaint was forwarded to the 2nd opposite party and thereafter no communication from the opposite parties.
The opposite parties have not denied the date of receipt or the date of delivery. Their contention is that the postal authorities are not liable for such a delay as they are protected by the S.6 of the Indian Post Office Act, 1898. The said article was delivered within the prescribed period as per Exhibit B1 in which it is shown that in the local area it would take 1 to 2 days and in the same state 1 to 4 days for delivery. The reason stated by the opposite party for not taking any action on the complaint of the complainant because the complainant did not contact them further.
In normal course people rely on speed post only on urgency. The presumption of sending parcels under the speed post system is to get a faster delivery. But here the articles in question were delivered only on the 6th day of receipt. If the complainant did not rush to Ernakulam with the Photostat copies of the documents sent, the purpose of sending would have been failed and the beneficiary would have suffered big loss. The contention of the opposite party that the articles were not lost but delivered to the addressee though delayed. If the opposite parties had accepted the parcel to send by way of speed post on assurance of delivery the next day, it should have been delivered on the next day itself. But the opposite parties did not deny the assurance given by them or the delay. The reason for delay is stated by them as it was festive season, there were a large number of parcels to be delivered. The article reached the speed post hub on the next day itself but from there only on the 6th day the article reached the addressee.
Though the opposite parties admit that they had received a complaint regarding this they do not explain whether they had taken any steps to conduct proper enquiry on this or taken any action. They have not explained the delay but merely denying it.
Moreover, the opposite parties rely on the immunity provided by S.6 of the
Indian Post Office Act,1898. S.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.
Honourable National Consumer Disputes Redressal Commission in Post Office, Hisar vs. Dilwan Singh, 2018 has opined that
11. There is a concurrent finding in respect of the fact that the concerned Speed Post was issued on 03.12.2012 and was received on 14.12.2012 and the same is admitted by the department. The normal delivery time is 3-4 days only and thus clearly the petitioner department was deficient in delivery of the Speed Post as per the norms of the department. The Indian Post Office Act is of 1898 and lot of water has flown since then. The modes of communication have changed from post card, and envelopes to recorded delivery, registered post, Speed Post, E-mails and other digital modes. Similarly, more and more laws are being enacted to infuse more element of accountability in the provision of public services. The employees can no longer take shelter under an Act, which was enacted in1898. As this Act was protecting the department and departmental employees, so no efforts were made to amend Section 6 of the Indian Post Office Act, 1898 by the machinery of the department. In the citizen charters, various government departments and agencies have placed time lines for completing their actions on various citizen centric issues. Even the postal department has fixed 3-4 days as delivery time for the Speed Post articles. Earlier, when the Act was passed, there might be no commitment on the part of the postal department to deliver as per certain commitment within a particular time, however, when the Speed Post scheme was introduced, there was a time limit imposed by the department itself upon its employees for delivery of the Speed Post articles.
There was no reference point to measure the delay under Section 6 of the Indian Post Office Act, 1898 earlier, but now under the Speed Post scheme, the delay can be measured as against norms. Thus, the situation has changed drastically from 1898 and there is a dire need to amend Section 6 of the Indian Post Office Act, 1898 as the concept of accountability has also undergone a sea change in management of public sector services. Even the Government of India and various State Governments have passed the law relating to mandatory provision of time lines in respect of providing different services to the consumer/common man. In this scenario, Section 6 of the Indian Post Office Act, 1898 has lost its relevance and credibility in the present times.
Strong case is made out for amending the Section 6 of the Indian Post Office
Act, 1898 in the light of the advancements made in the field of communications and in the field of accountability in the public system.
The Honourable National Commission in 2020,in Union of India Vs Amal Chandra Hore held that
25. The Postal Department adduced no evidence before the forum of original
jurisdiction i.e. the District Forum, or made any averment or assertion in its appeal
before the State Commission or in its memo of petition before this Commission, in respect of having conducted any inquiry or fact-finding to ascertain whether or not the delay in delivery was caused “fraudulently” or by “willful act or default” by its concerned officials. It belies reason that fraudulently or by willful act or default is summarily ruled out, without any inquiry or fact finding, and the exemption provided under Section 6 of the Act 1898 is straightaway adduced in defense. If that has to be so, each and every loss, misdelivery, delay or damage has necessarily to be presumed to not having been caused “fraudulently” or by “willful act or default” by officials of the Postal Department. Such reading of Section 6 would be absurd.
26. Section 6 does not intend to provide an unfettered license to the officials of the Postal Department for inefficiency and mismanagement or to cause loss and injury to its “consumer” (s) (or to abridge their dignity).
The exemption provided by Section 6 concomitantly requires [a] inquiry or fact-
finding to determine whether or not the loss, misdelivery, delay or damage was caused “fraudulently” or by “willful act or default” on the part of the concerned officials, [b] fixing accountability, as warranted [c] inculcating systemic improvements for future and [d] being alive to the loss and injury caused to its consumers. These concomitant requirements are missing in the instant case.
It cannot be that the concerned officials of the Postal Department are immune to
accountability within the Department, and also immune to accountability before a court / tribunal of law. And it cannot be that systemic improvements for future are not considered, and loss and injury to its consumers are treated as irrelevant and immaterial. Such reading of Section 6 will be totally irrational and misplaced.
27. Section 6 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. And this has to be seen in conjunction with deficiency in service under the Act 1986, which is writ large in the facts and circumstances of this case.
28. In the given facts, condoning such attitude, and mechanically applying the protection of Section 6 of the Act 1898, and out rightly overlooking the deficiency in service under the Act 1986, will defeat the purpose of both, the relevant provisions of the Act 1898 and the relevant provisions of the Act 1986, quoted in para 20 above, and also tantamount to this Commission granting carte blanche for inefficiency and deficiency without responsibility or accountability, which situation would be absurd.
29. The Postal Department, after its deficiency in service, agitated, unsuccessfully, in one, two, and now three, Consumer Protection Fora, needlessly wasting public time and monies. It has already been critiqued that in the given and admitted facts of this case, to apply the protection provided under Section
6 would be absurd. The correct approach would be for the Postal Department to inculcate systemic improvements and imbibe responsibility and accountability.
In the third Fora i.e. this Commission, its case fails on admission itself. This is a fit case to impose just and reasonable cost.”
Thus the above decision widely explains the scope and ambit of S.6 of Indian Postal Act and Consumer Protection Act.
So in the light of above judgements and discussion we find that in the case on hand also the opposite parties have not initiated any enquiry on the complaint of the complainant to ascertain whether the delay was caused because of any fraudulently or any willful act of any concerned official or not. The complainant was not provided with a satisfactory reply also. Thus the delay caused in the delivery of documents sent by the complainant is a deficiency of service on the part of the opposite party. Moreover, omission to take necessary action to get a satisfactory reply to the complainant is found to be dereliction of duties and gross negligence on the part of the opposite party. So in the interest of justice and with a social consciousness we are inclined to allow the complaint.
Moreover, if there is no express immunity from the provisions of Consumer Protection Act, the opposite parties are not protected against the cost payable towards deficiency of service on the part of the opposite parties.
The complaint is thus allowed and the opposite parties are directed to pay Rs.5,000/- towards compensation for the delay in delivery which is unexplained.
Order shall be complied with within a period of 30 days from the date of receipt of Order. If not complied as directed, the award amount will carry 9% interest from the date of Order till realization.
Pronounced in the Open Commission on this the 31st day of August, 2021.
Smt. Bindhu R, Member Sd/-
Sri. Manulal V.S. President Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Exhibits marked from the side of complainant
A1 – Copy of complaint filed before the opposite party dtd.31-12-18
A2 – Reply sent by opposite party dtd.17-01-2019
A3 –Tourist taxi receipt permit no.5-959-2016 dtd.22-12-18
A4- Postal receipt
A5-Postal acknowledgement card
A6-Postal receipt
Exhibits marked from the side of opposite party
B1 – Copy of Citizens’ Charter of Department of Posts
B2 – Gazatee notification
B3 – Copy of the Section 6 of the Indian Post Office Act 1898.
By Order
Senior Superintendent
