| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA CC.No.92 of 03-04-2017 Decided on 20-03-2018 Shiv Kumar Singla aged about 58 years S/o Om Parkash S/o Walaiti Ram R/o House No.20245/11, Street No.15, Parinda Road, Guru Teg Bahadur Nagar, Bathinda (Punjab) ........Complainant Versus 1.Union of India, Ministry of Communication, New Delhi through its Secretary. 2.Superintendent of Post Offices, Bathinda Division Bathinda. 3.Head Post Master, Main Post Office, Bathinda. .......Opposite parties Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Sh.M.P Singh Pahwa, President. Sh.Jarnail Singh, Member. Smt.Sukhwinder Kaur Member Present:- For the complainant: Sh.Vikas Gupta, Advocate. For opposite parties: Sh.M.R Gupta, Advocate. ORDER M.P Singh Pahwa, President The complainant Shiv Kumar Singla (here-in-after referred to as complainant) has filed complaint U/s 12 of Consumer Protection Act, 1986 against opposite parties Union of India and Others (here-in-after referred to as opposite parties). Briefly stated, the case of the complainant is that his daughter Sheenam is settled in New Zealand. She is having one child. She often remains sick and she is under Ayurvedic medication. Whenever she required any Ayurvedic available only in India, complainant used to send the same to her by way of parcel post. It is alleged that opposite parties are providing public utility services to the customers and running the vast network of their postal services through various post offices. They also provide their services to the general public for sending the articles, parcel and letters by post throughout the world under the agreement with almost every country of the world under the guidelines/instructions of Universal Postal Union. They are also providing some premium postal services such as speed post, regd. post and parcel post (including foreign article/parcel) by charging higher amount of charges as against the ordinary post. They are also having citizen charter wherein the time frame is mentioned within which the postal article reaches its destination. As per complainant, he sent a parcel through registered parcel on 16.3.2016 vide booking bearing No.CP-145419339IN containing some Ayurvedic medicines, toys, ladies suit and shoes valuing Rs.12,000/- to her daughter at New Zealand at the following address :- "Maninder Pal Singh 34/150, Chapil Road, New Zealand, PIN : 2016.” It is further alleged that the parcel was duly packed as per the instructions of opposite party No.3. The complainant paid an amount of Rs.5060/- as postal charges. At the time of handing over the registered parcel to the concerned employee at the booking counter of opposite party No.3, it was disclosed on asking of the counter clerk that the parcel contained some urgent medicines, ladies suits and toys. The counter clerk assured that the parcel will be delivered positively at its destination within a period of 7 to 10 days. It is further alleged that the daughter of the complainant made repeated telephone calls to the complainant for non-delivery of the medicines and toys etc. till the month of June 2016. Thereafter the complainant visited the office of opposite party No.3 and asked the concerned officials repeatedly about the delivery of the parcel at New Zealand and also requested to check on the internet/website of the post office about the delay in delivery of the article, but to no response. It is further alleged that the complainant purchased the ladies suits for an amount of Rs.4700/- from Kalra Boutique vide bill No.201 dated 7.3.2016, medicines worth Rs.3580/- from Dr. Ram Parshad and Sons vide bill No.28687 dated 12.3.2016 and other articles from different shops. He has alleged that non-delivery of registered parcel containing various articles shows that it has been damaged or fraudulently misappropriated by the officials of opposite party No.3. The complaint No.100006863335 was lodged with opposite party No.3 on 31.3.2016 by the complainant. The complainant also requested opposite party No.2 through written request vide letter dated 4.7.2016 for refund the amount of the lost articles. This request was duly received by opposite party No.2 on 5.7.2016. Belatedly, the complainant received the letter dated 2.2.2017 from opposite party No.2, which was infact addressed to The Chief Postmaster General, Delhi wherein information was sought about the disposal of the article. It shows that opposite party No.2 was not sure about the delivery of the registered parcel. It is further alleged that opposite parties did not deliver the article to the destination despite passing of more than one year. The complainant also got issued the legal notice dated 8.12.2016 to opposite party No.2 through his counsel. Reply dated 24.1.2017 was received wherein it is admitted that the parcel was got booked from the Post office Bathinda on 16.3.2016 and postal article has not been delivered to the addressee. It was further intimated to the complainant that the correspondence was going on between opposite parties for making efforts to locate the postal article, but no time frame has been stated within which this investigation/enquiry shall be completed. On this backdrop of facts, the complainant has alleged deficiency in service and unfair trade practice on the part of opposite parties. He has prayed for directions to opposite parties to refund Rs.12,000/- i.e. price of original articles contained in the registered parcel alongwith interest @18% per annum and Rs.5060/- paid as postal charges. He has also claimed Rs.1 lakh as compensation for mental tension and harassment and Rs.22,000/- as cost of litigation. Hence, this complaint. Upon notice, opposite parties appeared through their counsel and contested the complaint by filing their joint written version. In the written version, opposite parties have raised the legal objections that the complaint is not maintainable in its present form. The registered parcel No.CP154193391N was booked at Bathinda HO on 16.3.2016 by the complainant. It was addressed to Sh.Maninder Pal Singh, 34/150 Chapal Road, Aukland. This parcel could not reach to its addressee. The complaint regarding non-delivery of this parcel was lodged on the website No.100068-63335 on 31.3.2016. The search bill for stage by stage enquiry of the parcel was also issued vide letter No.CR/1000068-63335 dated 5.5.2016 and its enquiry is under process with Supdt. New Delhi Sorting Division as ordered by the HRO (Record) New Delhi Sorting Division, New Delhi vide letter No.CR/SB-632/2016-17 dated 3.9.2016. Opposite parties vide letters dated 2.2.2017 and 11.5.2017, have also written to the concerned circle i.e. The Chief Postmaster General, Delhi Circle, Meghdoot Bhawan, New Delhi for earlier and immediate enquiry in this case. The outcome of this enquiry shall be intimated to the complainant in due course and in the event of loss of parcel, he shall be paid compensation as per instructions of the department. There is no malafide intention on the part of any office or official of opposite parties. No legal notice U/s 80 CPC has been served upon opposite parties. The department of posts has no liability for loss and delay damages to any postal articles in the course of transmission as per section 6 of the Indian Post Office Act, 1898. Opposite parties have also reproduced Section 6 of Indian Post Office Act, 1898. Further legal objections are that the intricate question is involved. As such, the dispute should be relegated to the civil court. The claim made in the complaint is false, frivolous, vexatious to the knowledge of opposite parties. The complaint has been filed just to harass opposite parties. The complainant has concealed the true and material facts and filed this complaint on wrong facts. As such, the complaint is liable to be dismissed on this ground. He has not come to this Forum with clean hands. He is estopped from filing this complaint by his own acts and conducts. There is no deficiency in service on the part of opposite parties. The department of posts is not doing any business or trade to earn profits, but it is providing public utility services for the benefit of public at large. It provides these services by levying postage duty on postal articles, which is neither consideration nor create any contract with the sender. There is no willful delay or deficiency in service and damage or misappropriation of postal article on the part of opposite parties. The department is making sincere efforts to enquire the matter and locate the same. On merits, it is admitted that the registered parcel was got booked at Bathinda on 16.3.2016 by the complainant. Regarding other version, opposite parties have reiterated their stand as taken in the legal objections and detailed above. In the end, they have prayed for dismissal of complaint. Parties were asked to produce the evidence. In support of his claim, the complainant has tendered into evidence his affidavit dated 21.8.2017, (Ex.C1); photocopy of legal notice, (Ex.C2); photocopies of letter, (Ex.C3 and Ex.C7); photocopies of postal receipt, (Ex.C4 and Ex.C8); photocopies of bills, (Ex.C5 and Ex.C6) and closed the evidence. To rebut the claim of the complainant, opposite parties have tendered into evidence affidavit of Gopal Krishan dated 7.12.2016, (Ex.OP1/1); photocopy of online complaint, (Ex.OP1/2); photocopy of search bill, (Ex.OP1/3); photocopies of letter, (Ex.OP1/4 to Ex.OP1/6); photocopy of sanction letter, (Ex.OP1/7); photocopy of post delivery slip, (Ex.OP1/8); photocopy of rules, (Ex.OP1/9) and submitted written arguments. We have heard learned counsel for parties and gone through the file as well as written arguments submitted by learned counsel for opposite parties. Learned counsel for complainant has reiterated his stand as taken in the complaint and detailed above. It is further submitted by learned counsel for complainant that the material facts are not in dispute. It is not disputed that the complainant sent articles through registered parcel on 16.3.2016 and opposite parties charged a sum of Rs.5060/- as postal charges. The parcel was expected to be delivered at its destination within the period from 5 to 7 days. As the parcel has not reached to its destination within the reasonable time, the complainant lodged the complaint with opposite parties on 31.3.2016. The receipt of complaint is also not denied. The documents relied upon by opposite parties also prove receipt of complaint lodged by the complainant on 31.3.2016, but opposite parties started enquiry vide letter dated 5.5.2016 i.e. more than one month from the date of complaint. In the written version, opposite parties have nowhere asserted that the parcel was delivered to its destination, rather it is pleaded that the matter is under enquiry and outcome of enquiry will be intimated to the complainant in due course. The complaint was filed by the complainant on 3.4.2017 i.e. more than one year after sending the parcel. Opposite parties filed the written version on 30.5.2017. They were not still in position to locate the parcel. During the pendency of the complaint, they sent cheque of Rs.8176/- to the complainant as compensation, but it is not adequate compensation. The complainant has sent toys and shoes, articles worth Rs.12,000/- through parcel, which included medicines. Opposite parties have not taken any action on the complaint, which forced the complainant for this litigation. The complainant has also claimed litigation expenses to the tune of Rs.22,000/- in addition to compensation of Rs.50,000/- and refund of postal charges. Therefore, opposite parties cannot be absolved from their liability only on payment of Rs.8176/-. In support of these submissions, learned counsel for complainant has cited following case law:- i) Decision of Hon'ble State Commission, Punjab rendered in First Appeal No.803 of 2013, Decided on 11.12.2015 in case Post Office and Anr. Vs. Akhilesh Grover ii) Decision of Hon'ble National Commission rendered in RP No.1278 of 2016, Decided on 6.10.2017 in case Post Office and Anr. Vs. Akhilesh Grover vide which the appeal refereed by department against order dated 11.12.2015 was dismissed. On the other hand, learned counsel for opposite parties has submitted that the complainant does not fall within the definition of 'consumer' as relationship between the complainant and opposite parties is not of 'consumer' and 'service provider'. Opposite parties are performing the statutory duties. Therefore, there is no relationship of 'consumer' and 'service provider'. It is also submitted by learned counsel for opposite parties that even otherwise, the complainant was to allege and prove any negligence on the part of opposite parties, but there is no such averment and evidence. He has pleaded that he made complaint regarding non-delivery of his parcel. After receipt of complaint, opposite parties have taken effective steps to trace the parcel. They have placed on record copy of letter, (Ex.OP1/2), which is result of complaint filed by the complainant. They have also issued search bill, (Ex.OP1/3) to ascertain further disposal of the parcel. They have also issued letter to Superintendent, New Delhi, (Ex.OP1/4) for making enquiry into the matter. The letter, (Ex.OP1/5) was also issued in this regard. Vide letter, (Ex.OP1/6), it was also intimated that the parcel bag containing A/U/R was correctly dispatched by Ludhiana RMS. This fact also proves that there is no negligence on the part of any official. As the parcel could not be located, opposite parties provided the compensation payable under rules and regulations. The Post Office Guide contains the manner of computation of compensation to be paid in respect of international parcel and as per this guide book, in case of loss, total theft/damage, compensation payable is 40 SDR per parcel and 4.50 SDR per Kg. The value of SDR on relevant date was found to be Rs.95/- and weight of parcel was 11 Kgs. as mentioned in the postal receipt, (Ex.C4). Opposite parties have already released the cheque for Rs.8176/-. The complaint has become infructuous. It is liable to be dismissed. We have given careful consideration to these rival submissions. Admitted facts are that the complainant sent the registered parcel on 16.3.2016 to New Zealand on payment of Rs.5060/- as postal charges. The parcel was not delivered at its destination. The complainant made repeated complaints. Opposite parties after enquiry came to the conclusion that the parcel was not delivered at its destination. Therefore, it is proved that the parcel sent by the complainant was not delivered at its destination. Opposite parties have issued cheque of Rs.8176/- to the complainant as compensation. They have calculated this compensation as per following regulations:- “Compensation to be paid in respect of International parcels The compensation to be paid in respect of international parcels booked in post offices in India in case of loss/total theft/total damage are as under:- For loss/total theft/total damage-40 SDR* per parcel and 4.50 SDR* per kg.” The point for determination by this Forum remains whether opposite parties stand absolved after payment of Rs.8176/-. The complainant has claimed that he has sent articles worth Rs.12,000/-. Of-course, he has placed on record receipts to support his averments, but the value of articles sent through registered parcel is not mentioned in the postal receipt or any other document. Opposite parties have calculated the compensation as per aforesaid rules and regulations. The facts of the case reveals that the parcel was sent on 16.3.2016. The first complaint was made by the complainant on 31.3.2016, but no timely action was taken by opposite parties. Opposite parties have also produced on record letter dated 5.5.2016, (Ex.OP1/2). It is on the basis of complaint dated 31.3.2016. Whereabouts of the parcel could not be tracked till filing of complaint, which was filed on 3.4.2017. In the written version, opposite parties have rather pleaded that outcome of the enquiry shall be intimated to the complainant in due course and in the event of loss, he shall be paid compensation as per instructions of the department. The written version was filed on 30.5.2017. It proves that opposite parties were still unable to trace whereabouts of the parcel even after more than one year. Therefore, it resulted in the litigation for the complainant. The complainant has spent Rs.5060/- for postal charges, but as the parcel was not delivered, therefore, opposite parties cannot retain this amount. The complainant is entitled to this amount. He is also entitled to litigation expenses amounting to Rs.3000/- and refund of amount of Rs.5060/- paid as postal charges in addition to compensation of Rs.8176/- already sent by opposite parties through cheque. For the reasons recorded above, the complaint is partly accepted with Rs.3000/- as cost against opposite parties. Opposite parties are also directed to pay Rs.5060/- paid as postal charges to the complainant in addition to compensation of Rs.8176/- already sent to the complainant by opposite parties through cheque. The compliance of this order be made within 45 days from the date of receipt of copy of this order. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost. As there is shortage of postal stamps, parties can also collect the copy of order personally/through counsel against receipt. File be consigned to the record room. Announced:- 20-03-2018 (M.P Singh Pahwa) President (Jarnail Singh) Member (Sukhwinder Kaur) Member
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