BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 23rd of November 2010
PRESENT
SMT. ASHA SHETTY : PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
SRI. ARUN KUMAR K. : MEMBER
COMPLAINT NO.97/2010
(Admitted on 12.03.2010)
Mr.Pratheek V. Rao,
So. Vasantha Rao,
Aged about 20 years,
RA. Spandana Nivas,
Opp Adarsha Hospital,
APMC Road, Puttur. …….. COMPLAINANT
(Advocate for the Complainant: Sri.Chandrahas K).
VERSUS
1. The Superintendent of Post Offices,
Puttur Division D.K.,
Puttur 574 201.
2. The Manager,
Speed Post Centre,
Kochi – 682 001.
3. The Superintendent,
RMS “Q” Division,
Bangalore – 560 026.
4. The Post Master General,
S.K. Region,
Bangalore – 560 259.
5. The Post Master General,
Department of Post and Telegraph,
New Delhi. ……. OPPOSITE PARTIES
(Advocate for the Opposite Parties: Sri.G.K. Bhat).
***************
ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:
1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs.
The brief facts of the case are as under:
The Complainant submits that, he has availed a speed post service from the 1st Opposite Party on 12.06.2009 by paying consideration of Rs.67/- and the Opposite Party No.1 issued receipt for the same. The above said speed post has been addressed to his sister Smt.Priyanka Jithendra, Kochi. But the sister of the Complainant has informed that, she has not received the same and accordingly the Complainant has filed a complaint on 26.06.2009, in addition to that, the Complainant has also been informed by the Kochi Division that the article so send has not been delivered to the addressee and the same has been returned to Mangalore Railway Mail Service. Further to the response from the Kochi Division, the Complainant has visited Mangalore Railway Mail Service Office and discussed with the concerned in-charge. He has admitted that, the article was lost and assured that the enquiry will be conducted in respect of the same. It is stated that, the Complainant has given sufficient time for departmental enquiry but there was no response from the department. It is stated that, due to the negligent act, the Complainant has lost the article worth Rs.11,800/- and incurred loss other than the mental agony. Hence the above complaint filed under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party to return the undelivered speed post article and also pay a sum of Rs.50,000/- as compensation and cost of the proceedings.
2. Version notice served to the Opposite Parties by RPAD. Opposite Parties appeared through their counsel filed version submitted that, there is no deficiency and stated that, the speed post article dated 12.06.2009 was booked at Puttur. The article reached the destination post office safely but returned with the remarks ‘addressee left’ on 17.06.2009. The bag containing the said article was dispatched to Mangalore Railway Mail Service from Kochi Speed Post centre but the further disposal of the article was not forthcoming. A detailed enquiry at all stages of the handling of said speed post article has been made and since the final disposal of the same was not forthcoming, it was deemed to have been lost and hence the refund of double the amount of postage i.e., Rs.134/- was accorded. But the Complainant has not taken the payment of double the amount of the postage sanctioned, in turn Complainant served the legal notice, the same has been correctly replied and further contended that, Section 6 and 7 of the Indian Post Office Act exempt the Government from liability for loss, mis-delivery, delay or damage.
It is further submitted that, the value of the article was neither shown nor told while booking the letter by the Complainant to the Opposite Party. Hence the value of the contents in the letter being worth Rs.11,800/- is denied. If the article contained the valuables, the same should have got booked as the insured article declaring the value of the article but the same was booked as speed post letter for which no extra liability can be fastened on the postal department. The Complainant has deliberately sent the uninsured article to save the insurance charges and stated that there is no negligence nor deficiency and the payment made by the Opposite Party is correct and Complainant is not entitled for the remedy sought for and prayed for dismissal of the complaint.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant proves that the Opposite Parties committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Mr.Pratheek V. Rao (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C8 were marked for the Complainant as listed in the annexure. One Mr.A.K.Balan (RW1), Senior Superintendent of Post Offices, Puttur Division filed counter affidavit and answered the interrogatories served on him. Ex R1 to R3 were marked for the Opposite Parties and also produced six documents as listed in the annexure. Both parties produced notes of arguments.
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i): Affirmative.
Point No.(ii) & (iii): As per the final order.
Reasons
5. Point No. (i) to (iii):
This is a complaint filed against the Opposite Parties for deficiency of service. The Complainant alleged that, he has sent 950 grams worth article through speed post on 12.06.2009 from Puttur Head Post Office. It is stated that, the Opposite Parties received a consideration of Rs.67/- and the speed post has been addressed to the Complainant’s sister Smt.Priyanka Jithendra, Ernakulam, via Kochi. The sister has informed the Complainant that she has not received the same, accordingly the Complainant lodged a complaint on 26.06.2009 and the Complainant informed by the Kochi Division that the article so sent has not been delivered to the addressee and the same has been returned to the Mangalore Railway Mail Service (herein after called ‘RMS’) and thereafter the Complainant approached Mangalore RMS Office, on discussion the Opposite Parties admitted that the articles were lost. The Complainant had waited for the Opposite Parties for positive reply but the Opposite Parties neither returned the speed post articles nor delivered to the addressee till this date. It is contended that, the Complainant has sent article which contained two Nokia Handset worth Rs.5,900/- each and in support of the said article the Complainant produced Ex C2 i.e., two tax invoice dated 09.06.2009 issued by Cell Zone, Puttur and stated that because of their gross negligence the Complainant has suffered monetary loss and mental agony. It is further stated that, the Complainant waited for the reply of the Opposite Parties but on 31.08.2009 the Puttur Division of the Opposite Party sent a reply stating that the disposal of the above mentioned speed post article is not forthcoming hence it is deemed to have been lost. Thus, the Complainant approached this FORA by filing the above complaint.
On the contrary, the Opposite Parties contended that, the article in question reached the destination post office safely but returned with the remarks ‘addressee left’ on 17.06.2009. The bag containing the said article was dispatched to the Mangalore RMS from Kochi speed post centre. A detailed enquiry at all stages of the handling of said speed post article has been made and since the final disposal of the same was not forthcoming, it was deemed to have been lost and hence the refund of double the amount of postage i.e., Rs.134/- was accorded but the Complainant has refused to receive the payment of permissible double the amount of postage instead Complainant issued a legal notice. It is stated that, the position of law on the liability of the Department of Posts and its employees in respect of loss, mis-delivery of postal articles is mentioned in Section 6 of the Indian Post Office Act, 1898 and the same has been communicated vide reply dated 20.11.2009. As per Section 6 of the Indian Post Office Act, 1898, there is total exemption available for the department and its officers in cases like this. And it is further contended that, the value of the article under question was neither shown nor told while booking the letter/parcel by the Complainant at the booking counter and hence the value of the contents in the letter/parcel being worth Rs.11,800/- was denied and contended that as per Rule 184 (2) on which the amount specified for recovery exceeds Rs.100/-. This Rule is applicable to the present case and the articles not having been insured, no liability can be fastened on the Department.
The learned counsel for the parties submitted their notes of arguments as well as produced documents in support of their case. We have gone through the record on file and scrutinized oral as well as documentary evidence for the parties, we find that, admittedly the Complainant had sent the article through speed post on 12.06.2009 through Opposite Party No.1. It is the definite case of the Complainant that, he had sent the article which contained two Nokia Mobile Handset worth Rs.11,800/- to the addressee i.e., his sister through speed post which has not been reached to its destination i.e., Ernakulam North, Kochi thereby he has suffered monetary loss other than mental agony. The case of the Opposite Parties in this context is that, the article in question was sent to the destination post office safely but returned with the remarks ‘addressee left’ on 17.06.2009. The bag containing the said article was dispatched to Mangalore RMS from Kochi Speed Post Centre. But, the further disposal of the article was not forthcoming. A detailed enquiry at all stages of handling of said speed post article has been made and since the final disposal of the same was not forthcoming, it was deemed to have been lost and thereafter the Opposite Parties offered to refund the permissible double the amount of postage, the same has been refused by the Complainant. Further stated that, the value of the article under question was neither shown nor told while booking the letter/parcel by the Complainant. The Opposite Parties have also taken shelter under Section 6 of the Indian Post Offices Act.
We have observed that, the Ex C1 is the original receipt issued by the Opposite Party No.1 reveals that, the Opposite Party received the article which was weighing 950 grams on 12.06.2009. That means, some articles have been sent which was weighing 950 grams is proved in this case. The contention that, the value of the article under question was neither shown nor told while booking the letter/parcel by the Complainant at the booking counter is not acceptable because one cannot shift the blame on the other side. The Opposite Parties being a booking counter has equal responsibility while receiving the article from the customers. The value of the article ought to have mentioned while receipt of the same from the Complainant. After loosing the articles one cannot take a contention by stating that the value of the article was not shown. If at all the value of the article was not shown then why did they receive the article from the Complainant under speed post. The Opposite Parties ought to have refused to receive the article which was not containing the value in question. No such steps were taken by the Opposite Party at the earliest point of time. Further the Ex C4 i.e., the letter dated 31.08.2009 issued by the Opposite Party No.1 stating that the speed post article is not forthcoming and hence it is admitted to have been lost is one sided. The Opposite Party ought to have conducted the departmental enquiry and produced the report but no such steps were taken, simply they sent a reply by taking shelter under Section 6 of the Indian Post Offices Act and tried to shift the blame on the part of the Complainant for having not mentioned the value of the article. However, it has not been stated by the Opposite Parties as to what type of enquiry they have made and by whom it was eventually lost. If the article was dispatched to Mangalore RMS from Kochi Speed Post Centre, the further disposal of the article should have traced by the Opposite Parties by holding a detailed enquiry at all stages. But no such detailed enquiry report submitted before the FORA in order to substantiate their contention. In the absence of any evidence to prove that the article was lost which contained Nokia Mobile Handset, we have no hesitation to hold that it is only a lame excuse put forward by the Opposite Parties to cover its inefficiency.
However, even a perusal of the Section 6 of the Indian Post Offices Act confirms that, the exemption from liability for loss, mis-delivery, delay or damage is not extended to the officials in case where the same is caused fraudulently or by willful act or default of the officials. In this case, it is apparent that, there was default on the part of the officials which resulted in loss of delivery of the article which was sent by the Complainant and the same was not reached to the destination, therefore, we hold that there was a clear cut deficiency in service on the part of the Opposite Parties, which resulted in monetary loss to the Complainant and the mental harassment. It is our considered opinion that, Section 6 of the Indian Post Offices Act does not give the officials of the Postal Department unconditional protection in all cases of loss, mis-delivery, delay or damage. Consequently we find that, the Opposite Parties are liable to pay the damages which was suffered by the Complainant in this case.
As far as damages are concerned, it is not sufficient sending the double amount of the postage paid by the Complainant in this case because the Complainant produced the Invoice dated 09.06.2009, wherein, he purchased two sets of mobile handsets for Rs.11,800/- (i.e., Ex C2). Other than the above document the receipt issued by the Opposite Parties dated 12.06.2009 issued by the 1st Opposite Party reveals that the Opposite Party received the article which was weighing 950 grams that means, some weighing article has been sent by the Complainant in this case. The Ex C2 i.e., the invoice and the weight of the article go each other hence the article i.e., two mobile handsets sent by the Complainant could be accepted in this case. By considering the tax invoice produced by the Complainant, we hold that because of the gross negligence on the part of the Opposite Party No.1, the Complainant has lost two Nokia Mobile Handset worth Rs.11,800/-, the same shall be reimbursed by the Opposite Party No.1.
In view of the above discussion, we hold that the Opposite Party No.1 is hereby directed to pay Rs.11,800/- to the Complainant as compensation for the monetary loss and the mental agony. And also pay Rs.1,000/- as cost of litigation expenses. Payment shall be made within 30 days from the date of this order.
There is no deficiency of service established against Opposite Party No.2 to 5. Hence complaint against Opposite Party No.2 to 5 is hereby dismissed.
6. In the result, we pass the following:
ORDER
The complaint is allowed. Opposite Party No.1 is hereby directed to pay Rs.11,800/- (Rupees eleven thousand and eight hundred only) to the Complainant as compensation and also pay Rs.1,000/- (Rupees one thousand only) as cost of litigation expenses. Payment shall be made within 30 days from the date of this order.
On failure to comply the above said order, the Opposite Party No.1 is hereby directed to pay interest at the rate of 10% p.a. on the compensation amount from the date of failure till the date of payment.
Complaint against Opposite Party No.2 to 5 is hereby dismissed.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.
(Page No.1 to 12 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 23rd day of November 2010.)
PRESIDENT MEMBER MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Mr.Pratheek V. Rao – Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – 12.06.2009: Original receipt for sending speed post on consideration
Ex C2 – 09.06.2009: Original bills No.1839 and 1840 (2 in numbers).
Ex C3 – 26.06.2009: Letter issued by the Opposite Party No.1 to the Complainant.
Ex C4 – 31.08.2009: Letter issued by the Opposite Party No.1 to the Complainant along with other Opposite Parties.
Ex C5 – 02.11.2009: Lawyer’s notice issued to the Opposite Party No.1 and copy to other Opposite Parties.
Ex C6 - : Original postal receipts (5 in numbers).
Ex C7 - : Original acknowledgement card (5 in nos.).
Ex C8 – 11.11.2009: Letter issued by the Opposite Party to the Complainant’s counsel.
Witnesses examined on behalf of the Opposite Parties:
RW1 – Mr.A.K. Balan, Senior Superintendent of Post Offices, Puttur Division.
Documents produced on behalf of the Opposite Party:
Ex R1 – 31.08.2009: Refund of postage sanction memo No.100000-45444.
Ex R2 – 02.11.2009: Legal notice served by the Complainant.
Ex R3 – 20.11.2009: Reply given to the legal notice by the Opposite Party No.1.
Documents produced by the Opposite Party:
1) Attested copy of extract from Post Office Guide Part I (Clause 170, Clause 182, Clause 183, Clause 184(2).
2) Attested copy of page 02, 03 and 4 of A Hand Book on Speed Post (Services and Operations).
3) Attested copy of Department of Posts, letter No.43-4/87-BDD dated 22.01.1999.
4) Attested copy of Indian Post Office Act 1898 containing Section 6 of the Act.
5) Decision of Hon’ble National Commission in Revision Petition No.1035 of 2002 in Varun Garg Vs. Asst. Postmaster.
6) Decision of Hon’ble National Commission in Postmaster Imphal Vs. Jamini Devi, Sagolband.
Dated:23.11.2010 PRESIDENT
