D.O.F:09/11/2020
D.O.O:31/01/2023
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KASARAGOD
CC.No.148/2020
Dated this, the 31th day of January 2023
PRESENT:
SRI.KRISHNAN.K :PRESIDENT
SRI.RADHAKRISHNAN NAIR.M : MEMBER
SMT.BEENA.K.G : MEMBER
M/s Sulthan Gold International,
M.G Road, Kasaragod Post,
Kasaragod Taluk and district,
Represented by its General Power : Complainant
Of Attorney holder Mr. Abdulla.K.S,
S/o Shaikali, 56 years,
Residing at Thaivalappu House,
Muliyar Post and Village,
Kasaragod Taluk and District.
(Adv. Harshitha.K.M)
And
- Superintendent of Post Offices,
Kasaragod Division,
Kasaragod Post,
Kasaragod Taluk – 671121
: Opposite Parties
- The Superintendent of Post Offices,
Puttur Division,
Puttur Post, Puttur Taluk,
Karnataka State - 574201
ORDER
SRI.KRISHNAN.K : PRESIDENT
The complaint filed under section 12 of Consumer Protection Act-
The case of the complainant is that their establishment Sultan Gold international engaged in gold business in kasaragod. On 05.03.2019 one Sumayya purchased gold ornaments worth Rs.5,00,000/- from the complainant. Towards discharge of amount due, she issued a cheque dated 29.05.2020drown on Vijaya Bank, kaup branch Udupi Taluk. Cheque was presented for collection through South Indian Bank, Kasaragod branch. It was dishonored on 09.07.2019 due to funds insufficient. Complainant sent a lawyer notice dated 13.07.2020. Lawyer received postal receipt dated 15.07.2020 but postal acknowledgment is not received. He filed a complaint dated 11.08.2020 and approached opposite party on 27.08.2020adviced to wait and report. Acknowledgments card is a must for filing 138 NI Act Case. Despite notice, no relief. Hence, complainant seeking for a direction to the opposite party for payment of cheque amount Rs.5,00,000/- as compensation and litigation cost.
2. The opposite party filed its written version denying the allegations. The lawyer notice was dispatched on 15.07.2020 at Vidyanagar post office. It reached Banur post office on 14.07.2020. Received a complaint on 21.08.2020 and by hand dated 25.08.2020 alleging non-receipt of postal acknowledgment card evidencing delivery notice. Replied by letter dated 27.08.2020. A complaint was registered. A registered letter was sent requesting for proof of delivery letter.
3. On 07.09.2020 Sub Post master Nehru Nagar informed that registered letter was mis-placed/ lost at branch post office Bannur and up dated its status as delivered by mistake this fact was intimated to advocate. Detailed enquiry was conducted, it was revealed that postal article received on 17.07.2020 and entrusted for delivery. Article is returned as addressee left. Present address not known. But article not returned to sender, wrongly recorded as delivered by mistake. Opposite party is not liable to pay compensation. Functioning of postal service is governed by Post Office Act. Uninsured article if not delivered its liability is restricted to Rs.100/-. Hence, prayed to dismiss the complaint.
4. The Complainant and opposite party filed chief affidavit and cross examined. The complainant filed documents marked as Ext.A1 to A8. Ext.A1 is copy of power of attorney, Ext.A2 is cheque for Rs.5,00,000/-, Ext.A3 is dishonor memo, Ext.A4 is copy of lawyer notice, Ext.A5 is postal receipt, Ext.A6, A7 and A8 reply by postal superintendent and sub-division. Opposite party produced documents marked as Ext.B1 and Ext.B2. Ext.B1 is copy of Post Office Act, Ext.B2 is copy of decision filed by opposite party.
5. Following points arise for consideration in the case, which are:-
a) Whether there is any deficiency in service from opposite party?
b) Whether complainant is entitled for compensation or Opposite party liable to pay compensation and if so whether it is restricted to Rs.100/- as contend by opposite party
c) Whether opposite party is entitled to protection under section of 6 of Post Office Act? If so, for what reliefs?
6. Point No.1 According to opposite party a detailed enquiry was conducted by department. It is revealed that article reached and received by Bannur Post Office on 17.07.2020 it was entrusted for delivery. It was returned with endorsement addressee left present address not known. But retained in the post office with a noting delivered in the device by mistake without sending it to the sender. The complainant is not the sender as per opposite party, notice is sent by his advocate on his behalf. It is a statutory notice contemplated prior to filing of complaint under section 138 of NI Act being a legal requirement. So opposite party admit the lapse on their part and expressed their decision to pay ex-gratia not as a legal liability but ex-gratia.
Post and telegraph department VsSarada 19 Oct2001, 2002 AIR( Ker ) 78; 2001 3 KLT 809.
Held, wrong done by employee. Hence, it cannot be said that legislature intended on out right exoneration of liability of state when loss is occasioned to owner and loss contemplated under section 6 can only be in respect of loss by government. So far as the department is concerned. It cannot be said that the postal article was lost in course of transmission. In fact postal article was with its employee post office was liable to the sender for the value of the article which was entrusted to its care and in respect of which it cannot claim exemptions under section 6 Post Office Act,1898.
Section 6–liabilities-Employees:- In the case employee of Postal department had Fraudulently and willfully removed the postal article and took away to the demand draft and utilized for his own benefit. So far as the department is concerned, it cannot be said that the postal article was lost in course of transmission. In fact postal article was with its employee and he utilized it for his own benefit and as such there is a loss suffered by owner.
There is thus deficiency in service and negligence in the service rendered by opposite party in noting one thing as “addressee leftIndia” and in the device as delivered nor returned to the sender. The opposite party also admit postal article 15 lost. Point number 1 is found against the opposite party.
7. Point No.2 and 3. The question of consideration is whether the union of india and the postal department are liable to compensate the loss sustained by the owner due to the non-delivery of demand draft by the fraudulent act of other employee. The postal authorities disclaimed the liability for the value of the cheque and damages. It was further contended that in view of section 6 of the postal office Act there was total immunity of the postal authorities and to the Union.
By virtue of the provision of the India Post Office act, the department has the liability of a statutory carrier and postal authorities to deal with the same. The state being the employer; cannot avoid its responsibility for the willful wrong done by the employee to the member of the public. Hence, it cannot be said that the legislature intended of and outright exoneration of the liability of the state whom loss is occasioned to the owner under section 6 can only be in respect of the loss by the Government. In the present case it cannot be said that the employee of the postal department had fraudulently and willfully removed the postal article. Infact, the postal article was with its employee but he could not take sufficient care and thereby lost it. The government is liable to compensate for the loss sustained to the complainant as a result of the willful act committed by its employee. Point No.2 and 3 found against to the opposite party.
Now question of payment of damages or compensation in this regard.
The Complainant seeks value of cheque amounting to Rs.5,00,000/- original cheque is not lost by complainant. It is still with complainant original notice sent is lost. No case for complainant in the complaint that he was prevented from seeking legal recourse against the drawer of cheque or in filing any complaint against its drawer due to non-delivery or postal articles or any loss suffered thereby. Therefore claim for cheque amount is rejected. Compensation of Rs.5,00,000/- is found excessive and found un reasonable .
But the fact remains that opposite party is liable to pay compensation as Exgratia admittedly not delivered the article but not returned to sender and no explanation as to what happened to the article sent by registered post.
It is true that complainant suffered mental tension and agony in not getting proper acknowledgment or returned postal a caused fraudulently and willfully.
In the given facts, condoning such attitude, and mechanically applying the protection of section 6 of the Indian Postal Act, 1898, and outright overlooking the Deficiency in service under the Act, 1986, will defeat the purpose of the relevant provision of the Act.
The correct approach would be far the Postal Department to have systemic improvement and accept responsibility and accountability.
This is a fit case to impose just and reasonable cost. Thus commission is of the opinion that a sum of Rs.10,000/- (Rupees Ten Thousand only) in found reasonable compensation payable by the opposite party to the complainant. The complainant is also liable for litigation cost of Rs.5,000/- (Rupees Five Thousand only).
In the result complaint is allowed in part the opposite party is directed to pay Rs.10,000/-(Rupees Ten Thousand only) to the complainant for Deficiency in Service and for mental agony and pay Rs.5,000/- (Rupees Five Thousand only) for cost of the litigation within 30 days of the receipt of the order.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Exhibits
A1: Copy of power of attorney
A2: Cheque
A3: Dishonor memo
A4: Copy of lawyer notice
A5: Postal receipt
A6: Reply by postal superintendent Dt: 27/08/2020
A7: Reply by postal superintendent Dt: 17/09/2020
A8: Reply by postal superintendent Dt: 05/10/2020
B1: Copy of Post Office Act
B2: Copy of decision filed by opposite party.
B3: Postal Guide
Witness cross-examined
Pw1- Abdulla
DW1: P.R. Sheela
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Forwarded by Order
Assistant Registrar
Ps/
