Per Sri A. Hazarath Rao,  President:-

          The complainant filed this complaint under section 12 of the Consumer Protection Act, 1986 against opposite parties seeking Rs.22,500/- plus Rs.16,010/- being the value of material sent through the 1^st opposite party for delivering at the 2^nd opposite party’s place; Rs.201 plus Rs.353/- being the amount paid to the 1^st opposite party; Rs.35,000/- as compensation and Rs.6,000/- towards costs.     

2.   In brief the averments of the complaint are hereunder:

           The complainant on 21-01-12 sent sarees worth of Rs.22,500/- through transport services of the 1^st opposite party vide parcel No.ACP6006583427IN.  The complainant paid Rs.201/- (mistakenly typed as Rs.101/-) towards postal charges.  The parcel was delivered at the destination station i.e., at Jodhpur with less weight.  The complainant came to know that some rags were stuffed and delivered when opened.   The complainant sent another parcel consisting of 10 sarees and blouses worth of Rs.8310/- and Rs.7,700/- weighing 11.608 gms to Jodhpur.   Out of 10 sarees the consignee received two sarees and 18 blouses pieces weighing               4 kgs only.   The complainant thus sustained loss of Rs.38,510/-.  The complainant sustained the said loss due to fraud committed by the people of the opposite party by way of tampering the parcels with an intention of misappropriating the material.   Thus the above said fraud constituted an offence.   The opposite party committed fraud with an intention to gain unlawful advantage and cause loss to the complainant.   The act of the opposite party amounted to fraud with defect and deficiency of service and negligence.  The complainant through her letters dated 30-01-12 and 15-05-12 brought the same to the notice of the 1^st opposite party.   But the opposite party did not take significant steps to provide compensation to the complainant.   The complainant sustained loss due to mis-delivery, non-transport, mischief and fraud committed on the part of the opposite party including the deficiency of service.   The complainants suffered mental torture on account of the above attitude of the opposite party.  There was a fraudulent intention and willful commitment on the part of the opposite party who failed on two occasions to deliver the property intact to the consignee at the destination station.  The complaint therefore be allowed.

3.  The contention of the opposite parties in nutshell is hereunder:

          The complainant on 21-01-12 booked a parcel weighing 5470 grams addressed to M. Zurisana, Saket Colony, Jodhpur vide receipt No.ACP600583427IN.  The complainant on 30-01-12 lodged a complaint through SPM, Chandramoulinagar, Guntur stating that the parcel had been delivered less in weight and the sarees worth of Rs.22,500/- were taken out and some rags were stuffed and delivered at Jodhpur.  As per rule the Department would have rejected the parcel if the complainant stated the value of its inner   contents at the time of booking.   The complainant on 17-04-12 booked one more parcel vide EPP No.XN603115825IN.  Subsequently the complainant on 23-04-12 lodged a complaint alleging that the said parcel had been delivered in tampered condition alleging that the contents were abstracted by somebody and filled with some scrap to make the weight same.   The SSPO, Jodhpur was requested to make necessary enquiry at the delivery points on the above complaints.  On receipt of the complaints the SSPO, Jodhpur made enquiries.  The Residency Road Post Office, Jodhpur on 28-01-12 received RP No.ACP600583427IN in safe and proper condition and they served intimation to the addressee as it was a bulky parcel.  One Sunil Naik, an employee of the addressee shop took delivery of the parcel without raising any objection.   M. Zurisana the consignee stated that the contents received were not as per list available with contents and quality of contents.   As the said parcel was delivered in good condition and under clear acquittance no negligence was noticed on the part of the delivery staff.   Thus there was no negligence on the part of the opposite parties as alleged by the complainant.   The Residency Road Post Office, Jodhpur on 21-04-12 received the parcel vide EPP No.XN603115825IN and it was delivered on the same day through the concerned  beat post man at the office addressee to Smt Sh. Rustum Sana by obtaining her signatures on the recipient.   As the article under the reference was safe and in proper condition the consignee did not raise any objection at the time of delivery.  On enquiry the authorities of the 2^nd opposite party found that the contents received were not as per the list available in the parcel as stated by the said Zuri Sana.      As it was delivered under good condition and under clear acquittance there was no negligence on the part of the delivery staff.   Both the articles were received and delivered in proper and safe condition to the addressee.   No instructions/declaration were written on article for special delivery.  Post office remains unknown about inner contents of article at the time of booking as well as delivery.     As per rule valuable contents should be posted by insured only within limit prescribed for the service on proper declaration.   The 1^st opposite party informed the same to the complainant on 30-05-12 and 12-06-12.   The DPS, Jodhpur ordered re-enquiry in view of the complaint made by the complainant herein.  At the request of SSPO, Jodhpur the 1^st opposite party issued stage by stage search bill on 19-06-12.   All the hard works have been made by the postal department and there was neither defect nor any deficiency of service nor negligence in serving the public.  The complaint booked the above articles as registered parcel instead of insured parcels though she put valuable contents in them.  The complainant has not stated the particulars of the contents while booking the parcel in fright of postage to be paid for suitable service of posting.   If the complainant would have stated the contents of the parcel the 1^st opposite party might have suggested her to book the parcel as insured.   The complainant deceived the opposite parties without stating the value of contents in the parcel.  The complainant produced the bills for the articles she has purchased while filing the case.   Actually the 1^st opposite party was not aware what the complainant kept in the parcels as she presented a sealed parcel at the counter.   Therefore, the opposite parties have no liability in payment of amount sought by the complainant.   As per clauses 172 and 173 of PO guidelines valuable articles have to be insured and the department can cover all risks in course of transmission.  The Department is not at all liable for her negligence and skin flintiness as the complainant did not insure the parcels though valuables.   The opposite parties performed their duty properly.   The allegations of tampering/removing stuff from parcel, misappropriation, fraud are unbearable.  The complaint therefore may be dismissed.

4.   Exs.A-1 to A-19 on behalf of complainant and Exs.B-1 to B-5                 on behalf of opposite parties were marked besides Ex.X-1.  

5.    Now the points that arose for consideration in this case are these:

1. Whether the opposite parties committed deficiency of service?
2. Whether the complainant is entitled to any compensation?
3. To what relief?

6.   Admitted facts in this case are these:

                a. The complainant on 21-01-12 booked a parcel weighing

                    5470 grams through the 1^st opposite party to one Mzuri Sana,

                    Saket Colony, Jodhpur and paid Rs.201/- vide receipt                                          No.ACP6006583427IN (Ex.A-1).

                b. The complainant on 17-04-12 booked another parcel weighing

                   11608 grams through the 1^st opposite party (EPP) to one

                   Mzuri Sana, Saket Colony, Jodhpur and paid Rs.353/- vide                          receipt No.XN603115825IN (Ex.A-2).

                c. The above parcels reached destination.

                d. The complainant lodged a complaint on 30-01-12 with the

                   1^st opposite party complaining tampering of the parcel (Ex.A-6).        

                e. The consignee on 10-05-12 lodged a complaint to 2^nd opposite                              party relating to parcel No.XN603115825IN marking a copy to                      the 1^st opposite party and to the consignor complaining that                             actual stuff was missing (Exs.A-6 and A-7).

                 f. The complainant on 15-05-12 has given the contents of those                              two parcels to the 1^st opposite party (Ex.A-9).       

                 g. The opposite parties made enquiries regarding the above                             complaints (Exs.A-10 to A-15= B1, B3 to B5).

 7.   POINT No.1:-   The complainant contended that the articles sent through the 1^st opposite party were not delivered in tact to the consignee at the destination station and thus tampered the parcels and removed the valuable goods.   On the other hand, the learned counsel for the opposite parties contended that opposite parties were not aware of the contents of the parcels.  The said contention of the opposite parties is having considerable force as it was not the case of the complainant that the 1^st opposite party was aware of the contents of the parcels booked under Exs.A-1 and A-2.

8.      It is not the case of either of the parties that open delivery was given to the consignee at the destination station.   The contention of the complainant that they came to know about the tampering of parcels after opening them is therefore having considerable force.

9.      The learned counsel for the complainant relied on the decisions reported in (2008 (3) CPR 131), (2010 (3) CPR 149 and                                  (2013 (1) CPR 192).

10.    In The Director of Postal Services and another vs. Sri K. Ramachandran (2010 (3) CPR 149) it was held that the delay in delivering money order after more than 50 days amounted to deficiency of service.   It is not the case of the complainant herein that there was delay in delivery.  Therefore the above decision is distinguishable on facts.

11.    In Head Post Office, Hoshiarpur through Head Post Master vs. Ranjeet Kumar (2008 (3) CPR 131) it was held that non delivery of parcel to addressee by postal authorities though constituted deficiency of service  but in absence of allegations and proof that it was fraudulent or willful default, exemption u/s 6 of Post Offices Act is applicable.   In this case it is not the case of non delivery and therefore the above decision is not applicable to the facts of the case.

12.    Taking a clue from the above decision that non-delivery, mis-delivery, delay or damage amounted to deficiency of service and postal services come under the purview of Consumer Protection Act.

13.    In Dr. LK Chaturvedi and another vs. Post Master, Dak Bhawan and others (2013 (1) CPR 192 (MP)] it was held that post office is liable to indemnify only upto statutory limit.   In the above case the provisions of universal postal convention post office was applied.    Therefore the above decision is not applicable. 

14.    In Lucknow Development Authority vs. MMK Gupta (1994 (1) SCC 243) it was held

          “A public functionary if he acts maliciously or oppressively and the exercise of power results in harassment and agony then it is not an exercise of power but its abuse.  No law provides protection against it”.  

15.    The National Commission followed the above ratio decedendi and took the same view in  Chief Post Master, Delhi, G.P.O., vs. Ram Avtar Gupta (2006 (3) CLT 131).

16.  Section 6 of the Post Offices Act reads as under:

              “Exemption from liability for loss, misdelivery, delay or         damage.- The Government shall not incur any liability by reason of       the loss, mis-delivery 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, mis-delivery, delay or       damage, unless he has caused the same fraudulently or by his           wilful act or default.”

17.    A perusal of the above section revealed that there is an exemption clause exempting the postal authorities from any liability with an exception clause.   If it is proved that such loss, mis-delivery, delay or damage has been caused fraudulently or by willful act or default within the exemption clauses of section 6 of the Post Offices Act shall not be available to the post office.

18.    In this case both the parcels covered by Exs.A-1 and A-2 were delivered at the destination station without delay.  But the complainant alleged fraud, mis-appropriation and tampering of material in the parcel during transit.   Burden is on the complainant to prove the allegations of fraud, mis-appropriation and tampering as per section 6 of the Post Offices Act.  

19.   The learned counsel for the complainant while relying on Ex.X-1 to discharge burden contended that the complainant had no role during transit and is not aware how the parcels covered by Exs.A-1 and A-2 were dealt during transit that is from Guntur to Jodhpur and it is within the special knowledge of the opposite parties.   On the other hand, the learned counsel for the opposite parties contended that the opposite parties were not aware of contents of parcel at the time of booking and at the time of delivery and further relied on Rule 172 of PO guidelines.      

20.    The respective contentions of both the parties are having considerable force.  Ex.X-1 is copy of enquiry report by the enquiry officer who observed that the complainant herein stated that she used to send sarees through parcel/EPP.           

21.    The citizens have to trust public institutions and vice versa as contended by respective parties.   Rule 172 of P.O. guidelines is extracted below for better appreciation:          

            “Registered letters, value payable registered letters, registered parcels and value payable registered parcels may be insured up to the value of Rs.600 at such branch post offices, and up to the value of Rs. 10,000 at such other post offices, as are authorized, to accept articles for insurance and for such post offices as are authorized to deliver insured articles, provided that in no case shall such value exceed the real value of the contents of the article insured; provided also that articles containing gold, coin or bullion Government currency notes or bank notes or any combination of these shall be insured for the actual value of the contents. For the purpose of this rule, papers such as securities, legal documents, etc., may be regarded as having a real value (emphasis supplied).”

22.    The insurance of articles as stated in the above rule is not mandatory and is only optional.  It is not the case of the opposite party that they are not accepting the articles which were not insured.   The opposite party also contended that postal authorities cannot ask a person to disclose the contents in the parcels sent by him/her. 

23.    Regarding the parcel covered by Ex.A-1 vide ACP600583427.           In Ex.X-1 the enquiry officer observed “The parcel bag containing the RP No.ACP 600583427 dated 21-01-12 of Chandramoulinagar dispatched by Guntur RMS through Z-28 out was received by TMO-2 Vijayawada on 22-01-12 (Schedule hour of arrival is 04.40 hrs) and the same was transferred to VJA RMS PL section (working hours 09.00 to 17.00 Hrs) on the same day.   The VJA RMS PL section further consigned the article to Bhuvan RMS duly entered in Parcel list dtd.22-01-12 st Sl.2/2 and the parcel bag was dispatched through Y.33 out dtd. 23-01-12 (From Vijayawada to Sevagram-schedule hour of departure at Vijayawada is 02.05 hrs) duly entered in Mail list dated 22-01-12.   The staff of Y.33 out handed over the said bag at Sevagram to MP.28 IN Section (from Sevagram to Itarsi) under the control of SRM, Bhopal duly entered in Mail list dtd.23-01-12”.

24.    No incriminating material was found in the said enquiry report regarding first parcel.   Regarding the parcel covered by Ex.A-2 (EPP No.XN63115825IN dated 17-04-12) the enquiry officer in Ex.X-1 observed the following:

              “The EPP bag containing the EPP No. XN63115825IN dated 17-04-12 of BBC, Guntur dispatched by Guntur RMS through Z-28 out was received by TMO.2B, Vijayawada on 17-04-12 (schedule hour of arrival is 04.40 hrs).  But further disposal of the bag was not traced.  On reporting the matter, the SRM, Vijayawada got inquired the matter through ASP RMS/2A and intimated the result of inquiry vide letter No.K1/Misc/BBCGTR/Jodhpur/12 dtd.10.07.12.  As per his report, the said EPP bag was invoiced in ML meant for V.10IN dtd.17-04-12 but the same was noted short in the ML prepared by MA.1, TMO/2Bdtd. 17-04-12.  Actually the EPP bags should have been dispatched through Z.1 IN or Y.33 OUT.  But on verification of work papers the EPP bag was not found in any of the MLs sent through the said sections.  Since the EPP in question was delivered to the addressee, it is presumed that said bag might have being dispatched in another ML.”

          Basing on the said observations the learned counsel for the complainant required this Forum to draw an inference of meddling or tampering the parcel enroute and also relying on Ex.A-19 and the bag received by this Forum.   The learned counsel for the opposite parties on the other hand contended that the complainant failed to insure valuable articles covered by Ex.A-2 in accordance with Rule 172 of PO guidelines in spite of earlier experience.  It is not the case of either of the parties that a particular proforma was prescribed to be filled by a consignor before consigning an article either through registered parcel post or express parcel post to know its contents or value of consignment. Therefore the bag sent by Opposite parties and Ex.A-19 will not help the complainant as the opposite parties are not aware of contents of parcel sent.     The said observation itself in our considered opinion did not establish fraud or tampering or misappropriation by opposite parties. 

25.    When the opposite parties have charged Rs.201/- and Rs.353/- under Exs.A-1 and A-2 they have to see that the consignment be reached in proper state and condition.  Exs.A-1 and A-2 did not contain the value of consignment and nature of its articles.  In the absence of such particulars there is possibility of inflating the value or deflating the value by respective parties.

26.    This case can be viewed in another angle.  As the postal authorities were also brought under the ambit of Consumer Protection Act they have to take precautions by prescribing a particular proforma for dispatching consignments from one place to another mentioning value there of and contents therein with a clause of no liability for damage or delivery or non delivery under any circumstances.  Even in the presence of such a clause if consignors still send valuable articles it is at their risk.  In the presence of such a clause the postal authorities need not look into contents of parcels/consignments.   Absence of such an application in my considered opinion amounted to deficiency of service.   At the same time a consignor also has to safeguard his/her valuable articles against the risk of damage/short delivery/mis-delivery/non delivery/loss.    In this case also the complainant did not take any such precautions of insuring his articles though not mandatory under Rule 172 of PO guidelines.   Therefore this Forum feels that the complainant is also at fault in not taking any precautions while sending valuable articles. We therefore opine that both the complainant and opposite parties at fault in not discharging their responsibilities and hence answer this point accordingly.

28.  POINT No.2:-   The opposite parties are not aware of value of articles and contents sent under Exs.A-1 and A-2.   The complainant filed Exs.A-3 bill dated 19-01-12 for Rs.22,500/-; Ex.A-4 bill dated 14-04-12 for Rs.7,700/- and Ex.A-5 bill dated 14-04-12 for Rs.8,310/-.  In Ex.A-3 it was mentioned that 10 silk sarees were purchased.   In Ex.A-5 it was mentioned 10 sarees and ninety blouses were purchased.   But in Ex.A-4 the writing mentioned in the column ‘particulars’ is illegible.   Neither quantity nor its particulars did find place in Ex.A-4.    Under those circumstances, no reliance can be placed on Ex.A-4.   The amount covered by Exs.A-3 and A-5 comes to Rs.30,810/-.   We feel that no compensation need be awarded as both parties are found at fault.   In view of our findings on point No.1, directing the opposite parties to pay half of Rs.30,810/- will meet ends of justice.  We therefore answer this point accordingly. 

30.   POINT No.3:-   In view of above findings, in the result the complaint is allowed partly without costs.

1. The opposite parties are directed to pay Rs.15,405/- (Rupees fifteen thousand four hundred and five only) to the complainant with interest @9% p.a., from the date of complaint till payment.
2. The amount ordered above shall be paid within a period of six weeks from the date of receipt of the copy of the order.
3. The complainant is entitled to take return of Ex.A-19 produced by her before this Forum.
4. The opposite parties are entitled to take return of the bag summoned by this Forum in pursuance of summons.

          Typed to my dictation by Junior Steno, corrected by me and pronounced in the open Forum dated this the 1^st day of May, 2013.

MEMBER                                MEMBER                              PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For opposite parties:    

     PRESIDENT

NB:   The parties are required to collect the extra sets within a month after receipt of this order either personally or through their advocate as otherwise the extra sets shall be weeded out.