Delhi

North East

CC/120/2018

Sh. Sushil Kumar - Complainant(s)

Versus

The Post Master, - Opp.Party(s)

01 Nov 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 120/18

 

In the matter of:

	Sh. Sushil Kumar S/o Late Sh. Mool Chand R/o H.No. G-150/B, Gali no. 7 Phase-8, Shiv Vihar Karawal Nagar, Delhi-110094	Complainant
	Versus
1       2	The Post Master, Through its Sh. Gaurav Kumar (postman) Post Office Gakalpuri, Delhi   The Hon'ble Secretary Transport Through its M.L.O, Sarai Kale Khan Transport Authority New Delhi-	Opposite Parties

 

DATE OF INSTITUTION:      JUDGMENT RESERVED ON:               DATE OF DECISION :

04.07.2018 01.11.2019 01.11.2019

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

 Order passed by Ms. Sonica Mehrotra, Member

ORDER

1. The facts giving rise to the present complaint as spelled out by the complainant are that with respect to the Royal Enfield Bullet Electra 350 ES Motor Cycle Bearing Chassis no. ME3U3S5C0HG370681 Engine no. U3S5C0HG370681 (hereinafter referred to as the said bike) purchased by the complainant 22.10.2017, he had applied for the Registration Certificate (RC) from OP2 on payment of Registration Fees of Rs. 11,191/- on 15.11.2017. When the complainant approached OP2 to collect the RC of the said bike, he was told by the officer concerned of OP2 that the RC would be delivered at his registered address by post. However, when he did not receive the RC for considerable period of time for which reason he could not ply the said bike on road which was parked stationary at his residence, he enquired about the status of the same from OP2 and on enquiry, was told by its officials that the said RC book which was departed by OP2 was returned by OP1 to OP2 undecided. The complainant issued a legal notice dated 26.05.2017 dispatched on 28.05.2017 to OPs through counsel demanding dispatch of RC within 7 days receipt thereof but to no avail. Therefore alleging deficiency of service on the part of OPs in having failed to deliver the RC in question since 15.11.2017, complainant was compelled to file the present complaint against the OPs praying for issuance of direction against them to pay Rs 1,00,000/- as compensation on account of loss, harassment, mental pain and agony and Rs. 15,000/- towards cost of litigation. The complainant also filed application u/s 13(3)(B) of CPA for interim relief by way of direction against OPs to handover the RC book / Registration certificate with respect to the subject bike. 
2.  Notice was issued to the OPs on 13.07.2018. Despite service of OP1 effected on 30.07.2018, none appeared on its behalf and was therefore proceeded against ex-parte vide order dated 05.12.2018. OP2 entered appearance and filed reply by way of communication no. MLO/SKK/2018/1742 dated 15.09.2018 vide which it submitted that the subject RC was approved, issued and dispatched through speed post services of OP1 vide Speed Post no. ED323378916IN to the complainant’s address but was returned by OP2 to OP1 with postal remarks “addressee not found” and further submitted in this regard that vide reply no. MLO/SKK/2018/810 dated 05.06.2018 (copy attached with the representation / reply) to the legal notice dated 26.05.2018 of complainant through counsel, OP2 had informed the complainant that the subject RC was sent to the complainant vide the aforementioned ED323378916IN number on 14.12.2017 but was returned by OP1 on 18.12.2017 with postal remarks (translated in english) “addressee could not be found despite lot of search.” Lastly, OP2 submitted that the RC in question is since lying in its office, the same would be released on appropriate directions of this Forum.
3. Rejoinder and evidence by way of affidavit was filed by the complainant in which the complainant urged that the official of OP1 intentionally and deliberately did not furnish correct information to deliver the RC to the complainant and rather filed false and baseless report about the addressee did not found. Complainant further submitted in this regard that to the RTI dated 10.08.2018 filed by the complainant before CPIO of OP1, the Chief Vigilance Officer / Snr. Suptd. Post and Telegram East Delhi Division vide RTI response dated 20.09.2018, sent the same to the address of the complainant and the said response was not only correctly dispatched but also correctly delivered on the complainant’s address. Complainant pressed his application u/s 13(3B) in view of relief prayed therein and submission made by OP2 in this regard for release of RC. The complainant exhibited copy of cash receipt of  Rs. 11,191/- paid to Transport Department GNCTD i.e. OP2 for issuance of RC for the subject bike, copy of insurance certificate cum policy scheduled issued by HDFC ERGO General Insurance Co. Ltd., copy of complaint dated 14.05.2018 (alongwith postal receipt dated 17.05.2018) submitted by complainant to OP1 against the alleged erring area postman, namely Gaurav Kumar for non- delivery of RC since November 2017 till May 2018 and having inordinately delayed the same for vested interest of illegal gratification, copy of legal notice dated 26.05.2018 by complainant’s counsel to  OPs alongwith postal receipt, copy of forwarding letter dated 24.05.2018 from Chief Minister of Delhi office to Chief Post Master of OP1  pertaining to the complaint of complainant, copy of letter dated 12.06.2018 from OP2 to OP1 regarding complaint against Gaurav Kumar (postman) lodged by complainant on 14.05.2018 for non delivery of RC with copy marks to complainant counsel, copy of RTI query dated 10.08.2018 from complainant to CPIO of OP1 enquiring about action taken on his complaint dated 14.05.2018 and on the erring post man sent via  speed post no. ED782168769IN, copy of letter dated 17.07.2018 issued from Department of Post, office of CPG, Delhi circle to the complainant’s counsel, copy of RTI response dated 20.09.2018 by Postal Department East Delhi Zone alongwith copy of dispatch envelope depicting the complainant postal address, sender address on department of Post India envelope, copy of complaint dated 15.09.2018 by complainant’s counsel to Assistant Director (Vig. & Inv.) Department of Post Office of CPMJ, Delhi circle for no action taken against the erring postman and non delivery of the RC in question, copy of rent agreement dated 11.06.2018 entered into between the complainant as tenant and his landlord with respect to the said property being let out to the complainant for residential purposes on monthly rent of Rs. 1,000/- with tenancy commencing from 01.01.2018 till 30.11.2018 and copy of electricity bill for the month of March 2018 issued by BSES with respect to the said premises. All the aforementioned documents are exhibited as Ex CW1/A to CW1/Q respectively.
4. pursuant to the argument addressed by complainant on 13(3B) application and no objection thereto put forth by OP2, the same was allowed vide order dated 17.01.2019 with direction to OP2 to handover the subject RC to the complainant under proper receiving and complainant to file proof of receipt of the same before this court. The complainant confirmed having received the RC from OP2 on hearing held on 20.05.2019. OP2 did not appear after filing its written statement in October 2018 for the entire next year of proceedings due to which reason despite having been granted opportunity to file evidence by way of affidavit, when OP2 failed to appear and comply with the orders, its right to file its evidence was struck off vide order dated 20.05.2019.
5. Complainant filed written arguments in reassertion of his grievance against OP1 of deficiency of service for non delivery of the RC since November 2017.
6. During the course of oral arguments counsel for complainant submitted that in view of the subject RC having been handed over / received from OP2 no grievance remained against OP2 and confined his complaint and relief prayed therein against OP1.
7. We have heard the arguments address by the complainant and have perused the exhaustive documentary evidence placed on record by the complaint in terms of correspondence exchanged between him and the OPs regarding non delivery of the RC in question and the reason assigned in the correspondence for non delivery of the same by OP2 as informed by OP1 to the complainant on the basis information received by it from OP1 for return of RC speed post. The key question of adjudication is whether the complainant has proved that the non-delivery of the RC transmitted speed post by OP1 for delivery was due to a willful act or default on the part of the employee (Gaurav Kumar) of postal department and whether OP1 was deficient in service for non-delivery of the speed post in question. It is a cardinal principle of law that ordinarily the burden of proving the facts rests on the party who asserts the affirmative issues and not on the party who denies it. A three Bench Judge of the Hon'ble Supreme Court in A. Raghavamma & Anr Vs A. Chenchamma & Anr AIR 1964 SC 136 held that “there is essential distinction between burden of proof and onus of proof.” Burden of proof lies on the person who has to prove a fact & it never shifts, but the onus of the proof shifts. Such a shifting of onus is a continuing process in the evaluation of evidence. OP1 did not appear before this Forum nor filed written statement to discharge the onus on itself to rebut the allegation leveled by the complainant. Section 6 of Indian Post Office Act 1898 though gives Indian Postal Department immunity from any liability towards loss, mis-delivery, delay and / or damage to any postal article in course of transmission of post but exception is made in cases where any officer of the post office has caused such loss, mis-delivery, delay or damage fraudulently or by his willful act or default. Therefore the sections in two parts, first providing complete immunity and second part carving out an exception to the blanket immunity to the officers of the Postal Department. Therefore, the pertinent question here is whether the complainant has been able to prove that non delivery of the speed post containing RC transmitted by speed post for delivery by OP2 was due to willful act or default on the part of its employee for consideration of case falling u/s 6 of Post Office Act or not . In order to give effect to the objective of the Consumer Protection Act of cheaper, expeditious, easier and effective redressal mechanism, the provision of the Act have to be given purposive, broad and positive construction. The Hon'ble National Commission in Post Master General, West Bengal Circle General Post Office (GPO) Vs Dipak Banerjee & Anr IV (2015) CPJ 329 (NC) was of the view that if an addressee  of the letter is able to create a reasonable degree of probability that there was willful default on the part of an employee of the postal department, the onus would shift on the said department to discharge the onus to prove its denial, particularly when the addressee, the aggrieved party, does not have any access to internal working of the postal department.
8. The complainant in the present case has conclusively and unequivocally established by way of documents placed on record more pertinently the ones dispatch by postal department itself i.e. by OP1 to the complainant address viz RTI response dated 20.09.2018 and other such like correspondence dully received by complainant on his address. Further OP1 never informed the complainant that his RC speed post was returned by it in December 2017 itself despite complaint dated 17.05.2018, several follow ups and legal notice dated 28.05.2018 all of which went un-replied / unheeded  to by OP1. The attitude of the postal department in our considered opinion is a deliberate attempt to conceal the wrongful conduct of its erring employee / postman of not delivering the speed post containing RC of the complainant on a baseless or false pretext of addressee not found. This act creates a reasonable degree of probability that there was willful default on the part of the postman of duty Gaurav Kumar of OP1 and therefore OP1 on whom the onus had shifted to discharge the same to prove its denial failed to do so leading us to irresistibly conclude to that there was clear deficiency of service on the part of OP1 u/s 2(1)(g) of CPA. We are guided in holding such view by judgment of Hon'ble National Commission in Department of Post Vs Gajanand Sharma I (2017) CPJ 172 (NC) and Union of India Vs Arjun Bhagat I (2018) CPJ 332 (NC) in both of which the Hon'ble National Commission were faced with similar issue of non delivery of speed post and held postal department to be at willful default and deficient in service. Support is also lent to this view of ours by five Member Bench of Hon'ble National Commission in the landmark judgment of Postal Master Ranipet HO & Anr Vs Shri. N.B. Janakiraman 2001 (3) CPR 189 (NC). The non appearance of OP1 and no defence put forth by it has further resulted in the charges leveled against it by complainant having gone unrebuttal.
9. We therefore allow the present complaint & direct OP1 to pay a compensation of Rs. 5,000/- to the complainant on account of harassment, mental agony, pain suffered by the complainant on account of deficiency in service and willful default on the part of OP1 for non-delivery of Speed Post & dereliction of duty.   
10.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
11.   File be consigned to record room.
12.   Announced on  01.11.2019

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member