Department Of Post vs Raunaq Exports on 25 March, 2013

[Cites 13, Cited by 0]

State Consumer Disputes Redressal Commission

Department Of Post vs Raunaq Exports on 25 March, 2013

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.

                       First Appeal No.1508 of 2011

                             Date of institution :    13.10.2011
                             Date of decision :       25.03.2013

Department of Post, Central PO through its authorized signatory,

Ludhiana.

SPC (Speed Post Centre) through its authorized signatory, Ludhiana.

                                               .......Appellants- OPs.
                               Versus

Raunaq Exports, 1016, Shivala Road, Ludhiana through Prop. Rajnish

Kumar Bansal.

                                        ......Respondent- Complainant.

                       First Appeal against the order dated
                       26.8.2011 of the District Consumer Disputes
                       Redressal Forum,Ludhiana.

Quorum:-
     Hon'ble Mr. Justice Gurdev Singh, President.
            Shri Baldev Singh Sekhon, Member.

Present:-

For the appellants : Shri Vikram Bajaj, Advocate. For the respondent : Ex parte.

JUSTICE GURDEV SINGH, PRESIDENT :

This appeal by the appellants/OPs is directed against the order dated 26.8.2011 passed by District Consumer Disputes Redressal Forum, Ludhiana (in short "District Forum"), vide which the complaint filed by the respondent/complainant, Raunaq Exports, was allowed and the OPs were directed to pay Rs.38,500/- being the cost of First Appeal No.1508 of 2011. 2 the parcel, along with interest at the rate of 9% per annum from the date of lodging of the complaint till the realization of that amount and to pay Rs.3,000/- as compensation/litigation costs and fee of postal charges.

2. According to the complainant, one speed post parcel weighing 19380 grams and having 110 pieces of shawls was booked with OP No.1 against bill dated 13.5.2010 and the said parcel was to be delivered to SR Handloom at Dinapur. A sum of Rs.795/-, in cash, was charged as speed post charges. OP NO.3 received this parcel on 21.5.2010 and telephonically asked the said consignee to take delivery thereof. That consignee refused to take the delivery as he found the parcel had been tampered with and accordingly an error report dated 21.5.2010 was prepared in which the weight of parcel was given as 5740 grams against 19380 grams. The parcel was sent back by OP No.3 to OP No.2 who prepared the inventory report dated 18.6.2010 showing the shortage of the material worth Rs.38,500/-. The OPs failed to compensate him for that loss. This amounted to negligence and deficiency in service on their part. It was a clear case of default on the part of the officer of the Post Office and the OPs cannot escape the liability by resorting to Section 6 of the Post Office Act. There was an abuse of the power by OP No.3 who, without having any right to open the parcel, opened and tampered with the contents thereof. In all these circumstances, the OPs are liable to pay Rs.38,500/- along with interest at the rate of 12% per annum and a compensation of First Appeal No.1508 of 2011. 3 Rs.50,000/- for the harassment, mental tension and financial loss caused to him.

3. OPs No.1 and 2 in their written reply admitted the booking of the speed post parcel on 14.5.2010, which was to be sent to SR Handlooms at Dinapur and that at the time the same was booked, the weight thereof, was 19380 grams and postage of Rs.795/- was charged from the complainant. They also admitted that this parcel was received back and at that time the weight thereof was found to be 5170 grams and as per the error report dated 21.5.2010 prepared at Dinapur the weight of the parcel was found to be 5740 grams. They denied the other averments of the complainant and they came out with the version that the articles are accepted for booking at the speed post centres without bills of the goods and disclosing of the contents thereof unless the same are got insured from them. There is no requirement to know the contents of the articles at that time. The complainant had neither supplied the bill nor had disclosed the contents of the parcel at the time of booking. This parcel was despatched from their office to the place of destination in the same condition in which it was received from the complainant. As the contents of the parcel were never insured, so their liability is limited in case of damage, mis-delivery/non-delivery, as provided under Section 6 of the Indian Post Office Act, 1898 (in short "the Act") and Rule 66 (B) of the Indian Post Office Rules, 1933 (in short "the Rules"). In the event of any loss of the domestic speed post article or loss of its contents or damage to the contents, the First Appeal No.1508 of 2011. 4 compensation is to be double the amount of composite speed post charges paid or Rs.1,000/-, whichever is less. Therefore, their liability cannot be fixed at an amount more than that. Complicated questions of law and facts are involved in the present case and, as such, the matter in dispute cannot be decided in the summary manner. Only the Civil Court is competent to decide the same and the District Forum has no jurisdiction to entertain and decide the complaint. They also stated in their reply that the matter in dispute is commercial transaction and on that ground also the Consumer Forum has no jurisdiction to entertain and decide the matter.

4. The parties produced their evidence before the District Forum in support of their respective averments. After going through that evidence and hearing learned counsel for both the sides, the District Forum allowed the complaint, vide aforesaid order.

5. We have heard learned counsel for the appellants/OPs and have carefully gone through the records of the case.

6. It was submitted by learned counsel for the OPs that complete immunity is provided to the Government, in respect of the acts complained in the complaint of the complainant, under Section 6 of the Act. It is only in respect of the fraudulent or wilful act of the officers of the Post Office that liability can be fastened but no such officer of the Post Office was arrayed as a party by the complainant. In these circumstances, the District Forum was not competent to make an order directing the OPs to pay the price of the goods alleged to have been First Appeal No.1508 of 2011. 5 lost in the transit. As per Rule 66(B) of the Rules, the OPs could incur only a limited liability and only a compensation of double the amount of speed post charges or Rs.1000/-, whichever was less, could have been imposed. The OPs would certainly have been burdened with the liability to pay the price of the lost goods in case the parcel had been got insured by the complainant, which was never done. In these circumstances, the order of the District Forum cannot be sustained and, as such, is liable to be modified.

7. The factual position as determined by the District Forum was never assailed before us. Learned counsel for the OPs has confined his submissions to the legal proposition. The order under appeal was assailed by the learned counsel for OPs only on the ground that the OPs stand protected under Section 6 of the Act.

8. For better appreciation, Section 6 of the Act is reproduced below:-

"Exemption from liability for loss, misdelivery, delay or damage - The Government shall not incur any liability by reasons of loss, misdelivery 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 First Appeal No.1508 of 2011. 6 shall incur any liability by reason of any such loss, misdelivery, delay or damage, unless he has caused the same fraudulently or by his wilful act or default."

9. This Section consists of two parts; the first part deals with the liability of the Government and the second part deals with individual liability of Post Office employees. The first part absolves the Government of any liability by reason of loss, mis-delivery or delay or damage to any postal article in the course of transmission by post except in so far as such liability may, in express terms, be undertaken by the Central Government as provided by the statute. The second part provides that no officer of the Post Office shall incur any liability by reason of such loss, mis-delivery, delay or damage unless he has caused the same fraudulently or by his wilful act or default.

10. This very Section came up for consideration before the Hon'ble National Commission in Revision Petition No.2411 of 2006 decided on 26.4.2006 (Union of India v. M.L. Bora and another), wherein it was held that the Government stands totally exempted from the liability from any such delay in the delivery of the postal article and also exempts the officers of the Post Office unless their liability is fastened on account of any fraudulent or wilfull act or default. It was also held therein that Section 6 grants immunity to the Government for the loss, mis-delivery or damage to the postal article. In that case, no allegation was made against any officer nor the employees of the First Appeal No.1508 of 2011. 7 department were impleaded as opposite parties making any such allegations as stated above.

11. In para no.15 of the order of the District Forum, it is mentioned that it was proved on the record that there was wilful act or default on the part of the officers of the Post Office as it was their duty to keep the parcel in the safe custody and to deliver the same to the addressee. Even if such finding has been recorded, the OPs could not have been burdened with a liability to pay the amount of such goods as none of the officials or officers of the Post Office was impleaded as OP. The complainant was required to specifically mention in the complaint as to which officer of the Post Office was liable for the wilful act or default and he was to be arrayed as a party. There is complete immunity under Section 6 of the Act so far as the present OPs are concerned, who are part and parcel of the Government.

12. Rule 66(B) of the Rules is reproduced below:-

"In case of any delay of domestic Speed Post Parcels beyond the norms determined by the department of post from time to time, the compensation to be provided shall be equal to the composite Speed Post Charges paid and in the event of loss of domestic Speed Post Articles or loss of its contents or damages to the contents, compensation shall be double the amount of First Appeal No.1508 of 2011. 8 composite speed post charges paid or Rs.1000/- whichever is less."

13. When the OPs are not denying the loss of part of the contents of the speed post parcel, they are liable to pay compensation under this rule. It is an admitted fact that a sum of Rs.795/- was charged as postal charges. The double of the amount comes to Rs.1590/-. Therefore, the OPs could have been directed to pay Rs.1000/- as compensation. It is not the case of the complainant that, at any stage, he approached the OPs for the payment of compensation. Even no notice was served upon them before filing the complaint. Therefore, it cannot be said that they suffered any compensation on account of any injury or loss on account of the delay on the part of the OPs to settle their claim. Therefore, no compensation over and above the compensation of Rs.1000/- could have been awarded.

14. In the result, this appeal is allowed, the order of the District Forum is modified to the extent that the OPs are directed to pay Rs.1000/- as compensation to the complainant within a period of 45 days.

15. The appellants/OPs had deposited a sum of Rs.20,750/- in this Commission at the time of filing of the appeal on 13.10.2011. Out of this amount, Rs.1000/- be remitted to respondent/complainant, Raunaq Exports and the remaining amount along with interest which has accrued thereon, if any, shall be refunded by the registry to the First Appeal No.1508 of 2011. 9 appellants/OPs by way of crossed cheques/demand drafts after the expiry of 45 days.

16. The arguments in this case were heard on 21.3.2013 and the order was reserved. Now, the order be communicated to the parties.

17. The appeal could not be decided within the statutory period due to heavy pendency of court cases.




                                     (JUSTICE GURDEV SINGH)
                                            PRESIDENT




March 25, 2013                      (BALDEV SINGH SEKHON)
Bansal                                      MEMBER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH. First Appeal No.1508 of 2011

                             Date of institution :    13.10.2011
                             Date of decision :       25.03.2013

Department of Post, Central PO through its authorized signatory, Ludhiana.

SPC (Speed Post Centre) through its authorized signatory, Ludhiana.

.......Appellants- OPs.

Versus Raunaq Exports, 1016, Shivala Road, Ludhiana through Prop. Rajnish Kumar Bansal.

......Respondent- Complainant.

First Appeal against the order dated 26.8.2011 of the District Consumer Disputes Redressal Forum,Ludhiana.

Quorum:-

Hon'ble Mr. Justice Gurdev Singh, President.

Shri Baldev Singh Sekhon, Member. Present:-

For the appellants : Shri Vikram Bajaj, Advocate. For the respondent : Ex parte.

JUSTICE GURDEV SINGH, PRESIDENT :

This appeal by the appellants/OPs is directed against the order dated 26.8.2011 passed by District Consumer Disputes Redressal Forum, Ludhiana (in short "District Forum"), vide which the complaint filed by the respondent/complainant, Raunaq Exports, was allowed and the OPs were directed to pay Rs.38,500/- being the cost of First Appeal No.1508 of 2011. 2 the parcel, along with interest at the rate of 9% per annum from the date of lodging of the complaint till the realization of that amount and to pay Rs.3,000/- as compensation/litigation costs and fee of postal charges.

2. According to the complainant, one speed post parcel weighing 19380 grams and having 110 pieces of shawls was booked with OP No.1 against bill dated 13.5.2010 and the said parcel was to be delivered to SR Handloom at Dinapur. A sum of Rs.795/-, in cash, was charged as speed post charges. OP NO.3 received this parcel on 21.5.2010 and telephonically asked the said consignee to take delivery thereof. That consignee refused to take the delivery as he found the parcel had been tampered with and accordingly an error report dated 21.5.2010 was prepared in which the weight of parcel was given as 5740 grams against 19380 grams. The parcel was sent back by OP No.3 to OP No.2 who prepared the inventory report dated 18.6.2010 showing the shortage of the material worth Rs.38,500/-. The OPs failed to compensate him for that loss. This amounted to negligence and deficiency in service on their part. It was a clear case of default on the part of the officer of the Post Office and the OPs cannot escape the liability by resorting to Section 6 of the Post Office Act. There was an abuse of the power by OP No.3 who, without having any right to open the parcel, opened and tampered with the contents thereof. In all these circumstances, the OPs are liable to pay Rs.38,500/- along with interest at the rate of 12% per annum and a compensation of First Appeal No.1508 of 2011. 3 Rs.50,000/- for the harassment, mental tension and financial loss caused to him.

3. OPs No.1 and 2 in their written reply admitted the booking of the speed post parcel on 14.5.2010, which was to be sent to SR Handlooms at Dinapur and that at the time the same was booked, the weight thereof, was 19380 grams and postage of Rs.795/- was charged from the complainant. They also admitted that this parcel was received back and at that time the weight thereof was found to be 5170 grams and as per the error report dated 21.5.2010 prepared at Dinapur the weight of the parcel was found to be 5740 grams. They denied the other averments of the complainant and they came out with the version that the articles are accepted for booking at the speed post centres without bills of the goods and disclosing of the contents thereof unless the same are got insured from them. There is no requirement to know the contents of the articles at that time. The complainant had neither supplied the bill nor had disclosed the contents of the parcel at the time of booking. This parcel was despatched from their office to the place of destination in the same condition in which it was received from the complainant. As the contents of the parcel were never insured, so their liability is limited in case of damage, mis-delivery/non-delivery, as provided under Section 6 of the Indian Post Office Act, 1898 (in short "the Act") and Rule 66 (B) of the Indian Post Office Rules, 1933 (in short "the Rules"). In the event of any loss of the domestic speed post article or loss of its contents or damage to the contents, the First Appeal No.1508 of 2011. 4 compensation is to be double the amount of composite speed post charges paid or Rs.1,000/-, whichever is less. Therefore, their liability cannot be fixed at an amount more than that. Complicated questions of law and facts are involved in the present case and, as such, the matter in dispute cannot be decided in the summary manner. Only the Civil Court is competent to decide the same and the District Forum has no jurisdiction to entertain and decide the complaint. They also stated in their reply that the matter in dispute is commercial transaction and on that ground also the Consumer Forum has no jurisdiction to entertain and decide the matter.

4. The parties produced their evidence before the District Forum in support of their respective averments. After going through that evidence and hearing learned counsel for both the sides, the District Forum allowed the complaint, vide aforesaid order.

5. We have heard learned counsel for the appellants/OPs and have carefully gone through the records of the case.

6. It was submitted by learned counsel for the OPs that complete immunity is provided to the Government, in respect of the acts complained in the complaint of the complainant, under Section 6 of the Act. It is only in respect of the fraudulent or wilful act of the officers of the Post Office that liability can be fastened but no such officer of the Post Office was arrayed as a party by the complainant. In these circumstances, the District Forum was not competent to make an order directing the OPs to pay the price of the goods alleged to have been First Appeal No.1508 of 2011. 5 lost in the transit. As per Rule 66(B) of the Rules, the OPs could incur only a limited liability and only a compensation of double the amount of speed post charges or Rs.1000/-, whichever was less, could have been imposed. The OPs would certainly have been burdened with the liability to pay the price of the lost goods in case the parcel had been got insured by the complainant, which was never done. In these circumstances, the order of the District Forum cannot be sustained and, as such, is liable to be modified.

7. The factual position as determined by the District Forum was never assailed before us. Learned counsel for the OPs has confined his submissions to the legal proposition. The order under appeal was assailed by the learned counsel for OPs only on the ground that the OPs stand protected under Section 6 of the Act.

8. For better appreciation, Section 6 of the Act is reproduced below:-

"Exemption from liability for loss, misdelivery, delay or damage - The Government shall not incur any liability by reasons of loss, misdelivery 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 First Appeal No.1508 of 2011. 6 shall incur any liability by reason of any such loss, misdelivery, delay or damage, unless he has caused the same fraudulently or by his wilful act or default."

9. This Section consists of two parts; the first part deals with the liability of the Government and the second part deals with individual liability of Post Office employees. The first part absolves the Government of any liability by reason of loss, mis-delivery or delay or damage to any postal article in the course of transmission by post except in so far as such liability may, in express terms, be undertaken by the Central Government as provided by the statute. The second part provides that no officer of the Post Office shall incur any liability by reason of such loss, mis-delivery, delay or damage unless he has caused the same fraudulently or by his wilful act or default.

10. This very Section came up for consideration before the Hon'ble National Commission in Revision Petition No.2411 of 2006 decided on 26.4.2006 (Union of India v. M.L. Bora and another), wherein it was held that the Government stands totally exempted from the liability from any such delay in the delivery of the postal article and also exempts the officers of the Post Office unless their liability is fastened on account of any fraudulent or wilfull act or default. It was also held therein that Section 6 grants immunity to the Government for the loss, mis-delivery or damage to the postal article. In that case, no allegation was made against any officer nor the employees of the First Appeal No.1508 of 2011. 7 department were impleaded as opposite parties making any such allegations as stated above.

11. In para no.15 of the order of the District Forum, it is mentioned that it was proved on the record that there was wilful act or default on the part of the officers of the Post Office as it was their duty to keep the parcel in the safe custody and to deliver the same to the addressee.

Even if such finding has been recorded, the OPs could not have been burdened with a liability to pay the amount of such goods as none of the officials or officers of the Post Office was impleaded as OP. The complainant was required to specifically mention in the complaint as to which officer of the Post Office was liable for the wilful act or default and he was to be arrayed as a party. There is complete immunity under Section 6 of the Act so far as the present OPs are concerned, who are part and parcel of the Government.

12. Rule 66(B) of the Rules is reproduced below:-

"In case of any delay of domestic Speed Post Parcels beyond the norms determined by the department of post from time to time, the compensation to be provided shall be equal to the composite Speed Post Charges paid and in the event of loss of domestic Speed Post Articles or loss of its contents or damages to the contents, compensation shall be double the amount of First Appeal No.1508 of 2011. 8 composite speed post charges paid or Rs.1000/- whichever is less."

16. The arguments in this case were heard on 21.3.2013 and the order was reserved. Now, the order be communicated to the parties.

17. The appeal could not be decided within the statutory period due to heavy pendency of court cases.




                                     (JUSTICE GURDEV SINGH)
                                            PRESIDENT




March 25, 2013                      (BALDEV SINGH SEKHON)
Bansal                                      MEMBER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH. First Appeal No.1508 of 2011

                             Date of institution :    13.10.2011
                             Date of decision :       25.03.2013

Department of Post, Central PO through its authorized signatory, Ludhiana.

SPC (Speed Post Centre) through its authorized signatory, Ludhiana.

.......Appellants- OPs.

Versus Raunaq Exports, 1016, Shivala Road, Ludhiana through Prop. Rajnish Kumar Bansal.

......Respondent- Complainant.

First Appeal against the order dated 26.8.2011 of the District Consumer Disputes Redressal Forum,Ludhiana.

Quorum:-

Hon'ble Mr. Justice Gurdev Singh, President.

Shri Baldev Singh Sekhon, Member. Present:-

For the appellants : Shri Vikram Bajaj, Advocate. For the respondent : Ex parte.

JUSTICE GURDEV SINGH, PRESIDENT :

This appeal by the appellants/OPs is directed against the order dated 26.8.2011 passed by District Consumer Disputes Redressal Forum, Ludhiana (in short "District Forum"), vide which the complaint filed by the respondent/complainant, Raunaq Exports, was allowed and the OPs were directed to pay Rs.38,500/- being the cost of First Appeal No.1508 of 2011. 2 the parcel, along with interest at the rate of 9% per annum from the date of lodging of the complaint till the realization of that amount and to pay Rs.3,000/- as compensation/litigation costs and fee of postal charges.

2. According to the complainant, one speed post parcel weighing 19380 grams and having 110 pieces of shawls was booked with OP No.1 against bill dated 13.5.2010 and the said parcel was to be delivered to SR Handloom at Dinapur. A sum of Rs.795/-, in cash, was charged as speed post charges. OP NO.3 received this parcel on 21.5.2010 and telephonically asked the said consignee to take delivery thereof. That consignee refused to take the delivery as he found the parcel had been tampered with and accordingly an error report dated 21.5.2010 was prepared in which the weight of parcel was given as 5740 grams against 19380 grams. The parcel was sent back by OP No.3 to OP No.2 who prepared the inventory report dated 18.6.2010 showing the shortage of the material worth Rs.38,500/-. The OPs failed to compensate him for that loss. This amounted to negligence and deficiency in service on their part. It was a clear case of default on the part of the officer of the Post Office and the OPs cannot escape the liability by resorting to Section 6 of the Post Office Act. There was an abuse of the power by OP No.3 who, without having any right to open the parcel, opened and tampered with the contents thereof. In all these circumstances, the OPs are liable to pay Rs.38,500/- along with interest at the rate of 12% per annum and a compensation of First Appeal No.1508 of 2011. 3 Rs.50,000/- for the harassment, mental tension and financial loss caused to him.

3. OPs No.1 and 2 in their written reply admitted the booking of the speed post parcel on 14.5.2010, which was to be sent to SR Handlooms at Dinapur and that at the time the same was booked, the weight thereof, was 19380 grams and postage of Rs.795/- was charged from the complainant. They also admitted that this parcel was received back and at that time the weight thereof was found to be 5170 grams and as per the error report dated 21.5.2010 prepared at Dinapur the weight of the parcel was found to be 5740 grams. They denied the other averments of the complainant and they came out with the version that the articles are accepted for booking at the speed post centres without bills of the goods and disclosing of the contents thereof unless the same are got insured from them. There is no requirement to know the contents of the articles at that time. The complainant had neither supplied the bill nor had disclosed the contents of the parcel at the time of booking. This parcel was despatched from their office to the place of destination in the same condition in which it was received from the complainant. As the contents of the parcel were never insured, so their liability is limited in case of damage, mis-delivery/non-delivery, as provided under Section 6 of the Indian Post Office Act, 1898 (in short "the Act") and Rule 66 (B) of the Indian Post Office Rules, 1933 (in short "the Rules"). In the event of any loss of the domestic speed post article or loss of its contents or damage to the contents, the First Appeal No.1508 of 2011. 4 compensation is to be double the amount of composite speed post charges paid or Rs.1,000/-, whichever is less. Therefore, their liability cannot be fixed at an amount more than that. Complicated questions of law and facts are involved in the present case and, as such, the matter in dispute cannot be decided in the summary manner. Only the Civil Court is competent to decide the same and the District Forum has no jurisdiction to entertain and decide the complaint. They also stated in their reply that the matter in dispute is commercial transaction and on that ground also the Consumer Forum has no jurisdiction to entertain and decide the matter.

4. The parties produced their evidence before the District Forum in support of their respective averments. After going through that evidence and hearing learned counsel for both the sides, the District Forum allowed the complaint, vide aforesaid order.

5. We have heard learned counsel for the appellants/OPs and have carefully gone through the records of the case.

6. It was submitted by learned counsel for the OPs that complete immunity is provided to the Government, in respect of the acts complained in the complaint of the complainant, under Section 6 of the Act. It is only in respect of the fraudulent or wilful act of the officers of the Post Office that liability can be fastened but no such officer of the Post Office was arrayed as a party by the complainant. In these circumstances, the District Forum was not competent to make an order directing the OPs to pay the price of the goods alleged to have been First Appeal No.1508 of 2011. 5 lost in the transit. As per Rule 66(B) of the Rules, the OPs could incur only a limited liability and only a compensation of double the amount of speed post charges or Rs.1000/-, whichever was less, could have been imposed. The OPs would certainly have been burdened with the liability to pay the price of the lost goods in case the parcel had been got insured by the complainant, which was never done. In these circumstances, the order of the District Forum cannot be sustained and, as such, is liable to be modified.

7. The factual position as determined by the District Forum was never assailed before us. Learned counsel for the OPs has confined his submissions to the legal proposition. The order under appeal was assailed by the learned counsel for OPs only on the ground that the OPs stand protected under Section 6 of the Act.

8. For better appreciation, Section 6 of the Act is reproduced below:-

"Exemption from liability for loss, misdelivery, delay or damage - The Government shall not incur any liability by reasons of loss, misdelivery 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 First Appeal No.1508 of 2011. 6 shall incur any liability by reason of any such loss, misdelivery, delay or damage, unless he has caused the same fraudulently or by his wilful act or default."

9. This Section consists of two parts; the first part deals with the liability of the Government and the second part deals with individual liability of Post Office employees. The first part absolves the Government of any liability by reason of loss, mis-delivery or delay or damage to any postal article in the course of transmission by post except in so far as such liability may, in express terms, be undertaken by the Central Government as provided by the statute. The second part provides that no officer of the Post Office shall incur any liability by reason of such loss, mis-delivery, delay or damage unless he has caused the same fraudulently or by his wilful act or default.

10. This very Section came up for consideration before the Hon'ble National Commission in Revision Petition No.2411 of 2006 decided on 26.4.2006 (Union of India v. M.L. Bora and another), wherein it was held that the Government stands totally exempted from the liability from any such delay in the delivery of the postal article and also exempts the officers of the Post Office unless their liability is fastened on account of any fraudulent or wilfull act or default. It was also held therein that Section 6 grants immunity to the Government for the loss, mis-delivery or damage to the postal article. In that case, no allegation was made against any officer nor the employees of the First Appeal No.1508 of 2011. 7 department were impleaded as opposite parties making any such allegations as stated above.

11. In para no.15 of the order of the District Forum, it is mentioned that it was proved on the record that there was wilful act or default on the part of the officers of the Post Office as it was their duty to keep the parcel in the safe custody and to deliver the same to the addressee.

12. Rule 66(B) of the Rules is reproduced below:-

"In case of any delay of domestic Speed Post Parcels beyond the norms determined by the department of post from time to time, the compensation to be provided shall be equal to the composite Speed Post Charges paid and in the event of loss of domestic Speed Post Articles or loss of its contents or damages to the contents, compensation shall be double the amount of First Appeal No.1508 of 2011. 8 composite speed post charges paid or Rs.1000/- whichever is less."

16. The arguments in this case were heard on 21.3.2013 and the order was reserved. Now, the order be communicated to the parties.

17. The appeal could not be decided within the statutory period due to heavy pendency of court cases.




                                     (JUSTICE GURDEV SINGH)
                                            PRESIDENT




March 25, 2013                      (BALDEV SINGH SEKHON)
Bansal                                      MEMBER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH. First Appeal No.1508 of 2011

                             Date of institution :    13.10.2011
                             Date of decision :       25.03.2013

Department of Post, Central PO through its authorized signatory, Ludhiana.

SPC (Speed Post Centre) through its authorized signatory, Ludhiana.

.......Appellants- OPs.

Versus Raunaq Exports, 1016, Shivala Road, Ludhiana through Prop. Rajnish Kumar Bansal.

......Respondent- Complainant.

First Appeal against the order dated 26.8.2011 of the District Consumer Disputes Redressal Forum,Ludhiana.

Quorum:-

Hon'ble Mr. Justice Gurdev Singh, President.

Shri Baldev Singh Sekhon, Member. Present:-

For the appellants : Shri Vikram Bajaj, Advocate. For the respondent : Ex parte.

JUSTICE GURDEV SINGH, PRESIDENT :

This appeal by the appellants/OPs is directed against the order dated 26.8.2011 passed by District Consumer Disputes Redressal Forum, Ludhiana (in short "District Forum"), vide which the complaint filed by the respondent/complainant, Raunaq Exports, was allowed and the OPs were directed to pay Rs.38,500/- being the cost of First Appeal No.1508 of 2011. 2 the parcel, along with interest at the rate of 9% per annum from the date of lodging of the complaint till the realization of that amount and to pay Rs.3,000/- as compensation/litigation costs and fee of postal charges.

2. According to the complainant, one speed post parcel weighing 19380 grams and having 110 pieces of shawls was booked with OP No.1 against bill dated 13.5.2010 and the said parcel was to be delivered to SR Handloom at Dinapur. A sum of Rs.795/-, in cash, was charged as speed post charges. OP NO.3 received this parcel on 21.5.2010 and telephonically asked the said consignee to take delivery thereof. That consignee refused to take the delivery as he found the parcel had been tampered with and accordingly an error report dated 21.5.2010 was prepared in which the weight of parcel was given as 5740 grams against 19380 grams. The parcel was sent back by OP No.3 to OP No.2 who prepared the inventory report dated 18.6.2010 showing the shortage of the material worth Rs.38,500/-. The OPs failed to compensate him for that loss. This amounted to negligence and deficiency in service on their part. It was a clear case of default on the part of the officer of the Post Office and the OPs cannot escape the liability by resorting to Section 6 of the Post Office Act. There was an abuse of the power by OP No.3 who, without having any right to open the parcel, opened and tampered with the contents thereof. In all these circumstances, the OPs are liable to pay Rs.38,500/- along with interest at the rate of 12% per annum and a compensation of First Appeal No.1508 of 2011. 3 Rs.50,000/- for the harassment, mental tension and financial loss caused to him.

3. OPs No.1 and 2 in their written reply admitted the booking of the speed post parcel on 14.5.2010, which was to be sent to SR Handlooms at Dinapur and that at the time the same was booked, the weight thereof, was 19380 grams and postage of Rs.795/- was charged from the complainant. They also admitted that this parcel was received back and at that time the weight thereof was found to be 5170 grams and as per the error report dated 21.5.2010 prepared at Dinapur the weight of the parcel was found to be 5740 grams. They denied the other averments of the complainant and they came out with the version that the articles are accepted for booking at the speed post centres without bills of the goods and disclosing of the contents thereof unless the same are got insured from them. There is no requirement to know the contents of the articles at that time. The complainant had neither supplied the bill nor had disclosed the contents of the parcel at the time of booking. This parcel was despatched from their office to the place of destination in the same condition in which it was received from the complainant. As the contents of the parcel were never insured, so their liability is limited in case of damage, mis-delivery/non-delivery, as provided under Section 6 of the Indian Post Office Act, 1898 (in short "the Act") and Rule 66 (B) of the Indian Post Office Rules, 1933 (in short "the Rules"). In the event of any loss of the domestic speed post article or loss of its contents or damage to the contents, the First Appeal No.1508 of 2011. 4 compensation is to be double the amount of composite speed post charges paid or Rs.1,000/-, whichever is less. Therefore, their liability cannot be fixed at an amount more than that. Complicated questions of law and facts are involved in the present case and, as such, the matter in dispute cannot be decided in the summary manner. Only the Civil Court is competent to decide the same and the District Forum has no jurisdiction to entertain and decide the complaint. They also stated in their reply that the matter in dispute is commercial transaction and on that ground also the Consumer Forum has no jurisdiction to entertain and decide the matter.

4. The parties produced their evidence before the District Forum in support of their respective averments. After going through that evidence and hearing learned counsel for both the sides, the District Forum allowed the complaint, vide aforesaid order.

5. We have heard learned counsel for the appellants/OPs and have carefully gone through the records of the case.

6. It was submitted by learned counsel for the OPs that complete immunity is provided to the Government, in respect of the acts complained in the complaint of the complainant, under Section 6 of the Act. It is only in respect of the fraudulent or wilful act of the officers of the Post Office that liability can be fastened but no such officer of the Post Office was arrayed as a party by the complainant. In these circumstances, the District Forum was not competent to make an order directing the OPs to pay the price of the goods alleged to have been First Appeal No.1508 of 2011. 5 lost in the transit. As per Rule 66(B) of the Rules, the OPs could incur only a limited liability and only a compensation of double the amount of speed post charges or Rs.1000/-, whichever was less, could have been imposed. The OPs would certainly have been burdened with the liability to pay the price of the lost goods in case the parcel had been got insured by the complainant, which was never done. In these circumstances, the order of the District Forum cannot be sustained and, as such, is liable to be modified.

7. The factual position as determined by the District Forum was never assailed before us. Learned counsel for the OPs has confined his submissions to the legal proposition. The order under appeal was assailed by the learned counsel for OPs only on the ground that the OPs stand protected under Section 6 of the Act.

8. For better appreciation, Section 6 of the Act is reproduced below:-

"Exemption from liability for loss, misdelivery, delay or damage - The Government shall not incur any liability by reasons of loss, misdelivery 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 First Appeal No.1508 of 2011. 6 shall incur any liability by reason of any such loss, misdelivery, delay or damage, unless he has caused the same fraudulently or by his wilful act or default."

9. This Section consists of two parts; the first part deals with the liability of the Government and the second part deals with individual liability of Post Office employees. The first part absolves the Government of any liability by reason of loss, mis-delivery or delay or damage to any postal article in the course of transmission by post except in so far as such liability may, in express terms, be undertaken by the Central Government as provided by the statute. The second part provides that no officer of the Post Office shall incur any liability by reason of such loss, mis-delivery, delay or damage unless he has caused the same fraudulently or by his wilful act or default.

10. This very Section came up for consideration before the Hon'ble National Commission in Revision Petition No.2411 of 2006 decided on 26.4.2006 (Union of India v. M.L. Bora and another), wherein it was held that the Government stands totally exempted from the liability from any such delay in the delivery of the postal article and also exempts the officers of the Post Office unless their liability is fastened on account of any fraudulent or wilfull act or default. It was also held therein that Section 6 grants immunity to the Government for the loss, mis-delivery or damage to the postal article. In that case, no allegation was made against any officer nor the employees of the First Appeal No.1508 of 2011. 7 department were impleaded as opposite parties making any such allegations as stated above.

11. In para no.15 of the order of the District Forum, it is mentioned that it was proved on the record that there was wilful act or default on the part of the officers of the Post Office as it was their duty to keep the parcel in the safe custody and to deliver the same to the addressee.

12. Rule 66(B) of the Rules is reproduced below:-

"In case of any delay of domestic Speed Post Parcels beyond the norms determined by the department of post from time to time, the compensation to be provided shall be equal to the composite Speed Post Charges paid and in the event of loss of domestic Speed Post Articles or loss of its contents or damages to the contents, compensation shall be double the amount of First Appeal No.1508 of 2011. 8 composite speed post charges paid or Rs.1000/- whichever is less."

16. The arguments in this case were heard on 21.3.2013 and the order was reserved. Now, the order be communicated to the parties.

17. The appeal could not be decided within the statutory period due to heavy pendency of court cases.




                                     (JUSTICE GURDEV SINGH)
                                            PRESIDENT




March 25, 2013                      (BALDEV SINGH SEKHON)
Bansal                                      MEMBER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.

First Appeal No.1732 of 2010

Date of institution : 05.10.2010 Date of decision : 22 .03.2013 Life Insurance Corporation of India, Sector 17, Chandigarh through its Manager (L&HPF).

.......Appellant- OP.

Versus Satpal Singh S/o Sh. Kartar Singh, R/o H.No.210, Model Town Extension, Ludhiana.

......Respondent- Complainant.

First Appeal against the order dated 6.9.2010 of the District Consumer Disputes Redressal Forum, Ludhiana.

Quorum:-

Hon'ble Mr. Justice Gurdev Singh, President.

Shri Baldev Singh Sekhon, Member. Present:-

For the appellant : Shri Deepak Arora, Advocate.

For the respondent : None.

JUSTICE GURDEV SINGH, PRESIDENT :

Gurinder Singh son of Satpal Singh, respondent/complainant, during his life-time had taken Bima Kiran Policy No.161158917 from the appellant/OP, which commenced with effect from 28.11.1998 and the date of maturity was 28.11.2028. A sum of Rs.3,00,000/- along with double accidental benefit was assured under that policy. He had been paying the instalments regularly during his life-time. Similarly, First Appeal No.1732 of 2010. 2 he had taken Jeewan Sanchay Plan Policy No.161158918 from the OP on the same day and the sum assured thereunder was Rs.2,00,000/- along with double accidental benefit. In both those policies, the deceased nominated the complainant as his nominee. The complainant averred in the complaint that on the night intervening 4/5.8.2009 the deceased was cleaning his licenced revolver when it accidentally went off and the bullet pierced through his neck and head. He was immediately rushed firstly to Guru Teg Bahadur Hospital, Ludhiana and then to DMC & Hospital, Ludhiana but succumbed to his injury and died on 5.8.2009. He informed the police about this accident, which visited the spot and verified the facts. Thereafter a report was recorded at serial No.4 in the DDR dated 5.8.2009 in Police Station Model Town, Ludhiana. The proceedings were also initiated under Section 174 Cr.P.C. He, being the nominee, applied for the payment of the sums assured and other benefits under both the policies. Under policy No.161158917 only a sum of Rs.3,00,000/-, which was the sum assured, was disbursed but no accidental benefit was paid though agreed under the policy. Similarly, under policy No.161158918, OP disbursed sum of Rs.3,54,000/- i.e. Rs.2,00,000/- as the sum assured and Rs.1,54,000/- as vested bonus but did not pay the accidental benefit. He received letter dated 6.2.2010 from the OP intimating him that the accidental benefits had not been paid as the deceased committed suicide. The deceased had died an accidental death while cleaning the revolver and never committed any such suicide. First Appeal No.1732 of 2010. 3

2. The OP in the written reply averred that the deceased never died accidental death and committed suicide. That fact is very much clear from the averments of the report recorded in the DDR as it is mentioned in that DDR that, in fact, he was cleaning his gun when the same went off. It cannot be assumed that the deceased died as a result of the cleaning of the gun. The gunshot had hit the head, which is not possible while cleaning the gun. It was on that account that the accidental benefits were not paid and claim to that effect was repudiated.

3. After going through the evidence produced by the parties and hearing learned counsel on their behalf, District Consumer Disputes Redressal Forum, Ludhiana (in short "District Forum") allowed the complaint, in which the complainant had claimed Rs.5,00,000/- as double accident benefits under the policies and Rs.1,00,000/- as compensation for mental agony and harassment, and directed the OP to settle the claim of the complainant after considering the terms and conditions of the impugned policies within 45 days of receipt of the copy of order and to pay Rs.3,000/- as compensation and Rs.2,000/- as litigation expenses, vide order dated 6.9.2010. Aggrieved by that order, the OP has preferred the present appeal.

4. We have heard learned counsel for both the sides and have carefully gone through the records of the case.

5. It was submitted by learned counsel for the OP that the complainant had been coming up with different versions at different First Appeal No.1732 of 2010. 4 times. In the DDR, it was mentioned that the deceased died as a result of the accidental firing of the gun when the same was being cleaned by the deceased, whereas, as per the arm licence the deceased was having a revolver/pistol and as per the version given in the complaint, it was the licenced revolver of the deceased, which went off accidentally causing the death. As per the contents of the post mortem report, it cannot be held that any such fire arm went off accidentally causing the death of the deceased. The seat and nature of the gunshot injury itself suggest that the deceased fired a shot at his head himself and that amounts to committing of suicide. It cannot be said that it was an accidental death and, as such, the accidental benefits under the policies were correctly repudiated and the District Forum was justified in dismissing the complaint. He prayed that the appeal be accepted, order of the District Forum be reversed and the complaint be dismissed.

6. On the other hand, it was submitted by learned counsel for the complainant that from the evidence produced by the complainant it stands proved that the deceased died an accidental death as he received the gunshot injury accidentally when he was cleaning his gun and the same went off accidentally. By no stretch of imagination, it can be said that the death was suicidal. When such was the case, the OP was liable to pay the accidental benefits also under both the policies. The repudiation of the valid claim of the complainant on flimsy grounds and the delay caused in the payment of the claim amount resulted in First Appeal No.1732 of 2010. 5 mental agony and harassment to the complainant for which he is entitled to compensation as claimed in the complaint. There is no merit in the appeal and the same is liable to be dismissed.

7. The only question, which requires determination for the disposal of the present appeal, is as to whether the death of the deceased was accidental or suicidal? Admittedly, his death took place on the night intervening 4/5.8.2009. The report with the police was lodged on 5.8.2009 by his father Satpal Singh complainant. That DDR was proved on the record as Ex.C-5. The same was recorded on the statement of the complainant. As per the narration given therein, he was told by Preet Kamal, wife of the deceased, that the deceased was cleaning the gun and in the process received the gunshot injury and that when he went to the room of the deceased, he found him lying in the bathroom and blood was oozing out of his neck and head and the revolver and the cleaning material was lying by his side. The only and the best witness in this case to disclose as to how the deceased received the injury was his widow itself. The affidavit of that widow was never proved on the record. The affidavit of the complainant was proved as Ex.CW-1/A but the deposition as contained therein is only hearsay.

8. The post mortem report was proved on the record as Ex.C-6.

The following two injuries were found on the dead body:-

"1. Stitched wound about 3 cm present below chin 4 cm & 4 cm lateral lower right side of chin. First Appeal No.1732 of 2010. 6

2. Stitched wound about 2.5 cm present on left side of fronto parietal temporal region of skull about 20 cm vertically above tragus of left eye."

9. It was opined, by the Board of Doctors, which conducted the post mortem examination, that in their opinion the death was due to shock and haemorrhage as a result of gunshot injury (head injury).

10. All these facts, which stand proved on the record, only point towards the suggestion that the death of the deceased was not accidental but was suicidal. As per the version given in the DDR, the fact of deceased having received a gunshot injury was disclosed to the complainant by his daughter-in-law at 2.00 A.M. It cannot be believed that a person at the dead of the night would be cleaning his revolver/gun. According to the complainant, as disclosed in the DDR, the dead body was lying in the bathroom. It cannot be imagined that a person would clean the revolver/gun in the bathroom. He would be doing so only after comfortably sitting at a convenient place and bathroom cannot be said to be a convenient place. The seat of the injuries found on the dead body makes it very much clear that those cannot be received by accidental fire of the shot from the revolver/gun and such injuries are possible only after the firearm is pointed intentionally towards the body with the aim of shooting. A wrong finding was recorded by the District Forum that the death of the deceased was accidental and not suicidal. That finding is hereby reversed. When such is the case, the complainant, as a nominee of the First Appeal No.1732 of 2010. 7 deceased, was not entitled to any such accidental benefits under the policies.

11. This appeal is accordingly allowed, the order dated 6.9.2010 of the District Forum is set aside and the complaint of the complainant is dismissed. However, no order is made as to costs.

12. The sum of Rs.25,000/- deposited at the time of filing of the appeal along with interest which has accrued thereon, if any, shall be refunded by the registry to the appellant/OP by way of a crossed cheque/demand draft after the expiry of 45 days.

13. The arguments in this case were heard on 18.3.2013 and the order was reserved. Now, the order be communicated to the parties.

14. The appeal could not be decided within the statutory period due to heavy pendency of court cases.




                                     (JUSTICE GURDEV SINGH)
                                            PRESIDENT




March 22, 2013                      (BALDEV SINGH SEKHON)
Bansal                                      MEMBER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.

First Appeal No.789 of 2009

Date of institution : 08.06.2009 Date of decision : 22.03.2013 D.T.D.C. Courier and Cargo Ltd., Regional Office HHP3 Region, SCO No.367, Sector 35-D, Chandigarh through Shri Jatinder Sethi, Regional Manager.

.......Appellant- OP.

Versus Kailash Chand Jain, Managing Partner, Gulmarg Beaty B-XXIV-2995, Sunder Nagar, Ludhiana.

......Respondent- Complainant.

First Appeal against the order dated 16.3.2009 of the District Consumer Disputes Redressal Forum, Ludhiana.

Quorum:-

Hon'ble Mr. Justice Gurdev Singh, President.

Shri Baldev Singh Sekhon, Member. Present:-

For the appellant : Shri Parminder Singh, Advocate. For the respondent : Shri Hitesh Kaplish, Advocate. JUSTICE GURDEV SINGH, PRESIDENT :

The appellants/OPs have preferred this appeal against the order dated 16.3.2009 passed by District Consumer Disputes Redressal Forum, Ludhiana (in short "District Forum"), vide which the complaint filed by the respondent/complainant, Kailash Chand Jain, First Appeal No. of 200. 2 was allowed and the OPs were directed to pay Rs.1,22,108/- and Rs.2,000/- as costs of litigation.

2. The facts, in brief, are that the complainant was engaged in hosiery business. He sent five boxes of woollen goods to M/s L.N.B. Textile Pvt. Ltd., Bangalore, through the appellants/OPs, vide docket No.T-16864354. On the same day, he sent five boxes of woollen goods to the same concern but at a different address of Bangalore through the OPs, vide docket No.T-16864355. It was promised by OP No.1 that these goods would be delivered to the consignees within six days from the date of booking but the same were never delivered.

Thereafter, he was told that all the 10 boxes had been lost on the way to Bangalore and that the OPs were trying to trace out the same. The goods contained therein were meant for winter season. Before these goods were located, the winter season was already over and, as such, he requested the OPs, vide letter dated 12.3.2007 to get the consignment re-booked. On 6.8.2007 he was surprised to see on the website that he was asked to contact the customer care department as the OPs were unable to trace the goods. Thereafter, he issued a legal notice dated 20.8.2007 to them claiming a sum of Rs.2,56,712/- as each set of five boxes contained goods worth Rs.1,28,356/- and he also claimed Rs.5,00,000/- as compensation for mental and physical agony suffered by him. On the receipt of that notice, the OPs contacted him on 28.8.2007 and disclosed that out of 10 boxes, 8 boxes were found and those were returned to him on 3.9.2007 but those were in very bad First Appeal No. of 200. 3 condition. Though he was assured by the OPs that the remaining two boxes would also be traced and returned to him but the same never happened. It appears that the remaining two boxes have been lost by the OPs. The value of the goods contained in those two boxes comes to Rs.52,108/-. He suffered a loss of Rs.1,00,000/- on account of the damage to the goods contained in the other boxes. In the complaint filed by him he made a prayer that the OPs be directed to pay the said sum of Rs.1,52,108/- along with interest at the rate of 2% per annum and Rs.5,00,000/- on account of damages.

3. After the complaint was admitted, notice was issued to the OPs, who came present before the District Forum and filed the written reply admitting therein about the booking of 10 boxes by the complainant for delivery to the party at Bangalore. They denied the other averments of the complainant and stated that all the consignments booked by the complainant were delivered without any delay in due course of business. The consignments could not be delivered as the consignee was not ready to accept and 8 consignments were returned to the complainant. At the time of booking, the consignment was in sealed condition and all the terms and conditions of the booking were read over to the complainant and were accepted by him. As per those terms and conditions, they are only liable to pay Rs.1,00/- as damages. No cause of action has arisen to the complainant to file the present complaint and the same is not maintainable in the present form. First Appeal No. of 200. 4

4. Both the sides produced their evidence before the District Forum in support of their respective averments. After going through that evidence and hearing learned counsel on their behalf, learned District Forum allowed the complaint, vide aforesaid order.

5. We have heard learned counsel for both the sides and have carefully gone through the record of the case.

6. It was submitted by the learned counsel for the OPs that at the time of booking of the goods the complainant was made aware of the terms and conditions printed on the consignment slips. As per those terms and conditions the liability of the OPs is limited to the extent of Rs.100/- in respect of each of these two consignments. At the time of booking it was never declared by the complainant as to what was contained in the boxes so consigned and what was the value thereof? In these circumstances, even if the Foras under the Consumer Protection Act, 1986 comes to the conclusion that there was any such deficiency in service on their part, they are only liable to pay Rs.200/- as damages. The District Forum wrongly allowed the damages to the tune of Rs.1,22,108/-. That order is liable to be set aside.

7. On the other hand, it was submitted by the learned counsel for the complainant that after properly appreciating the evidence produced by the parties, the District Forum came to the correct conclusion that the complainant suffered a loss of Rs.1,22,108/- on account of negligence on the part of the OPs and such a negligence on their part in not delivering the consignment to the consignee and returning part First Appeal No. of 200. 5 of the goods in damaged condition and non-return of the other goods amounts to deficiency in service on their part. The attention of the complainant was never drawn towards the conditions printed on the consignment slip nor his signatures were obtained thereon. Therefore, he cannot be made bound by those terms and conditions. There is no merit in the appeal and he prayed for the dismissal thereof.

8. The OPs proved on record the affidavit of Shiv Rawat, Ex.RW1/A, in which he deposed that all the terms and conditions of the OPs were read over to the complainant at the time of booking of the consignment and he accepted all those terms and conditions and as per those terms and conditions the damages can be recovered only to the extent of Rs.100/-. No such terms and conditions were proved on the record. The consignment slips were proved by the complainant as Ex.C-3 and Ex.C-4. No such condition limiting the liability of the OPs to Rs.100/- is legible on these consignment slips. The onus was upon the OPs for proving that there was such a term/condition which was duly accepted by the complainant at the time of booking of the goods. The oral evidence produced by the OPs on that aspect of the case is of no use to it as the document containing such term and condition is required to be proved on the record in case the OPs wanted to make the complainant bound by the same. Therefore, it cannot be held that the liability of the OPs was limited to the extent of Rs.100/- in respect of each of the consignments.

First Appeal No. of 200. 6

9. In view of the evidence produced by the complainant, no weight can be given to the argument of the learned counsel for the OPs that at the time of booking of the boxes the contents thereof were not disclosed and the value of the contents was not declared. The complainant in his affidavit Ex.CW1/A specifically deposed that the five boxes contained the goods vide invoice No.0316 dated 30.11.2006 for Rs.1,28,356/- and the other five boxes contained the woollen goods, vide invoice No.0317 dated 30.11.2006 for Rs.1,28,356/-. He proved those invoice as Ex.C-1 and Ex.C-2. This part of the evidence of the complainant was never rebutted by the OPs. They have not disputed the nature of the goods or the value thereof contained in the boxes so booked and consigned with them for onward delivery to the consignee. It is the admitted case of the parties that 8 boxes were returned to the complainant and two could not be returned as these were lost in the transit. The District Forum, after taking into consideration all the documents proved on the record and affidavits of the parties, came to the correct conclusion regarding the loss suffered by the complainant. It also correctly assessed the value of the goods, which were never delivered back to the complainant by the OPs and said to have been lost in transit. However, the compensation of Rs.50,000/- so awarded appears on the higher side, especially when, the District Forum made an order for reimbursement for the lost goods and for payment of damages of Rs.20,000/- for the other goods. We First Appeal No. of 200. 7 are of the considered opinion that in the circumstances of the present case a sum of Rs.20,000/- is reasonable compensation.

10. The order of the District Forum is modified to that extent and the appeal is decided accordingly. The OPs are directed to pay Rs.52,108/-+Rs.20,000/-+ Rs.20,000/-=Rs.92,108/- to the complainant and litigation costs as assessed by the District Forum within 45 days of the passing of this order.

11. The sum of Rs.25,000/- deposited at the time of filing of the appeal along with interest which has accrued thereon, if any, shall be remitted by the registry to the complainant as compensation/litigation costs and interest by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the District Forum and the appellants.

12. The arguments in this case were heard on 19.3.2013 and the order was reserved. Now, the order be communicated to the parties.

13. The appeal could not be decided within the statutory period due to heavy pendency of court cases.





                                      (JUSTICE GURDEV SINGH)
                                             PRESIDENT



March 22, 2013                        (BALDEV SINGH SEKHON)
Bansal                                        MEMBER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.

First Appeal No.1090 of 2009

Date of institution : 03.08.2009 Date of decision : 22.03.2013 Himmat Singh son of Shri Hazara Singh, R/o H.No.872, Phase-11, SAS Nagar (Mohali).

.......Appellant-Complainant Versus The Oriental Insurance Co. Ltd., SCO No.45, 1st Floor, Sector 20-C, Chandigarh through its having Branch Office The Oriental Insurance Co. Ltd. at SCO No.20, 2nd Floor, Phase-1, Mohali.

......Respondent-OP First Appeal against the order dated 2.7.2009 of the District Consumer Disputes Redressal Forum, SAS Nagar (Mohali).

Quorum:-

Hon'ble Mr. Justice Gurdev Singh, President.

Shri Baldev Singh Sekhon, Member. Present:-

For the appellant : Shri Yash Paul Singh, Advocate. For the respondent : Shri R.K. Bashamboo, Advocate. JUSTICE GURDEV SINGH, PRESIDENT :

The appellant/complainant, Himmat Singh, feeling aggrieved by the order dated 2.7.2009 passed by District Consumer Disputes Redressal Forum, SAS Nagar, Mohali (in short "District Forum") dismissing his complaint with costs of Rs.3,000/-, has preferred the present appeal. He averred in his complaint that he got his car make First Appeal No.1090 of 2009. 2 Tata Indigo bearing registration No.PB-01-0882 (in short "the car") comprehensively insured from the OP and at that time insurance policy No.231110/31/2009/4974 was issued which was for the period 6.9.2008 to 5.9.2009 and he paid a premium of Rs.16,926/-, vide cheque, which was duly got encashed by the OP. On 9.10.2008 the car was taken on hire by army officer Lt. Col. Sunil Nayyar for visiting Ratno Chak (Jammu & Kashmir). While coming back on 12.10.2008 and when the same was being driven by his son, it met with an accident near Saila Khurd, when a stray cattle suddenly appeared in front of the car and while saving that cattle another car bearing No.PB-

08-AB-2151 banged in the car resulting heavy damage and loss thereto. All the occupants of the car received the injuries. His son approached the Police Post at Saila Khurd and tried to lodge the complaint but the intention of police authorities was to make the parties to reach at amicable compromise and, as such, FIR was not recorded by it and it waited upto 22.10.2008. On 13.10.2008 he approached the OP for getting the damaged vehicle surveyed and disclosed that the car was lying at Saila Khurd. On 22.10.2008 Er. Sham Sunder Sharma accompanied him to the spot and surveyed the damaged car and took the photographs. He approached M/s Lucky Crane Services and got the car removed to M/s Motorways, Industrial Area, Panchkula. Mr. Rajesh Wadhawan was deputed as surveyor by the OP for assessing the loss, who visited M/s Motorways on 24.10.2008 and 25.10.2008 and took the photographs and also First Appeal No.1090 of 2009. 3 collected the required documents from him. After the car was repaired, he again approached the OP on 27.1.2009 for getting the repaired car re-inspected and on his request the same surveyor was deputed for inspecting the car. When he approached the OP for reimbursement of payment of his claim of the damaged car, he was not informed that the investigator was deputed to investigate the claim case and he reported that at the time of accident the vehicle was being driven by one Pawan Kumar and not by his son Harinder Singh. He does not know any such Pawan Kumar and it has wrongly been reported by the investigator that the car at the time of accident was being driven by such Pawan Kumar. He incurred an expenditure of Rs.1,06,708/- on the repairs of the damaged car and is entitled to recover that amount from the OP besides Rs.50,000/- as compensation for the mental harassment and agony and Rs.5,000/- as litigation expenses.

2. After the admission of the complaint, notice was issued to the OP who filed written reply. Denying the contentions of the complainant, it averred that the car was being driven by one Pawan Kumar and not by the son of the complainant at the time of accident. The matter was not reported to the police deliberately/intentionally as the complainant wanted to plant his son as driver in place of Pawan Kumar and that fact is very much clear from the statements made in the claim form. The column meant for the number of passengers carried in the car was left blank and it was also mentioned therein that First Appeal No.1090 of 2009. 4 the driver and the occupants thereof were not injured whereas Lt. Col. Sunil Nayyar, who was travelling in the car, had fracture of the arm. The car was being driven by Pawan Kumar and son of Sunil Nayyar, namely, Ankush Nayyar was also accompanying the same and had also received the injuries for which they were admitted in Bhagat Hari Singh Charitable Hospital. The complainant in support of his false version got the report lodged with the police after 10 days of the accident. The complainant gave false information by concealing the name of the actual driver and, as such, violated the terms of the declaration given by him in the claim form. His claim was correctly repudiated on account of the false information having been furnished regarding the name of the driver. It's surveyor had assessed the loss to the car at Rs.76,363.55P. The complainant is not entitled to any such amount or compensation. It prayed for the dismissal of the complaint.

3. Both the sides produced their evidence in support of their respective averments before the District Forum. After going through that evidence and hearing learned counsel on their behalf, the District Forum dismissed the complaint, vide aforesaid order.

4. We have heard learned counsel for both the sides and have carefully gone through the record of the case.

5. It was submitted by the learned counsel for the complainant that the claim of the complainant was wrongly repudiated by the OP on the ground that there was concealment of material facts on his part and that he concealed the factum that at the time of accident the car was First Appeal No.1090 of 2009. 5 being driven by Pawan Kumar. From the evidence produced by the complainant, it firmly stands proved that at the time of accident the car was being driven by Harinder Singh. It was Harinder Singh who got lodged the report with the police Ex.C-5/1 on 21.10.2008. That fact was also mentioned in the claim form submitted by the complainant. The complainant supported all the facts contended in the complaint by way of his affidavit Ex.CW-1/1. Merely on account of some omission in the claim form, it cannot be held that the car at the time of accident was not being driven by Harinder Singh. The finding recorded by the District Forum is not based upon any evidence and is liable to be set aside. He prayed that the appeal be accepted, order of the District Forum be set aside and while allowing the complaint a direction be issued to the OP for paying the amounts as mentioned therein.

6. On the other hand, it was submitted by learned counsel for the OP that after carefully scrutinizing the evidence produced by the parties, the District Forum came to the correct conclusion that at the time of accident, the car was being driven by Pawan Kumar and the name of Harinder Singh was substituted by the complainant in order to make claim against the OP as Pawan Kumar was not holding a valid and effective driving licence for driving the car. That fact stands proved from the certificate of Bhagat Hari Singh Charitable Hospital Ex.C-5/2, which has been relied upon by the complainant himself and from the entries made in the claim form Ex.R-4. That fact also stands proved from the report of the investigating officer Ex.R-1. There is no First Appeal No.1090 of 2009. 6 ground for upsetting the well reasoned finding of the District Forum. He prayed for the dismissal of the appeal.

7. It is the admitted case of the parties that the accident had taken place on 12.10.2008. The FIR was not got lodged by the complainant or any other person immediately after the accident. Report was lodged with the police on 21.10.2008. What was the purpose of lodging that report when it was got incorporated therein that a compromise had been entered into between the persons, who were in the vehicles, which were involved in the accident. That fact is to be kept in view while scrutinizing the other evidence for determining whether the finding recorded by the District Forum that there is concealment of fact by the complainant is correct or not. The certificate Ex.C-5/2 is most relevant document for determining that controversy between the parties. As per that certificate, it were Sunil Nayyar, Ankush Nayyar and their driver Pawan Kumar who were got admitted in that hospital with the history of roadside accident and were discharged on the same day. It is mentioned in the complaint itself that all the occupants, including the driver of the car, sustained injuries in the accident. If it was so, how the name of the driver came to be recorded in the said certificate as Pawan Kumar whereas, according to the complainant, the car was being driven by his son Harinder Singh. In the claim form Ex.R-4, it was mentioned by the complainant that the driver and the occupants of the car did not receive any injuries. It stands falsified by the said certificate. Lt. Col. Sunil Nayyar has been First Appeal No.1090 of 2009. 7 described as a third party and as per the statement made in that claim form no one was travelling in the car with the son of the complainant. When the complainant can go to such an extent in making a false declaration, the possibility of his son having got recorded false report with the police cannot be ruled out. This report was got lodged with an ulterior motive in order to make it appear that the car at the time of accident was being driven by Harinder Singh. Even the investigator in his report Ex.R-1 has mentioned that at the time of accident the car was being driven by Pawan Kumar and not by Harinder Singh. From all the evidence produced on the record, we have no hesitation in concluding that the car at the time of accident was being driven by Pawan Kumar. A false statement was made by the complainant in the claim form and the OP was justified in repudiating his claim on that ground. A correct finding was recorded to that effect by the District Forum and we do not find any ground for upsetting that well reasoned finding. There is no merit in the appeal and the same is hereby dismissed. However, no order is made as to costs.

8. The sum of Rs.1500/- deposited at the time of filing of the appeal along with interest which has accrued thereon, if any, shall be remitted by the registry to the respondent/OP by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the District Forum and the appellant.

9. The arguments in this case were heard on 19.3.2013 and the order was reserved. Now, the order be communicated to the parties. First Appeal No.1090 of 2009. 8

10. The appeal could not be decided within the statutory period due to heavy pendency of court cases.




                                     (JUSTICE GURDEV SINGH)
                                            PRESIDENT



March 22, 2013                      (BALDEV SINGH SEKHON)
Bansal                                      MEMBER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH. First Appeal No.211 of 2012

                             Date of institution :       22.02.2012
                             Date of decision :          22.03.2013

1. Union of India through General Manager, Northern Railways, Baroda House, New Delhi.

2. Senior Divisional Commercial Manager, Northern Railway, Ferozepur Division, Ferozepur Cantt.

3. Station Superintendent, Northern Railway, Railway Station, Mal-Godown Road, Sri Mukatsar Sahib.

4. Mohan Lal Meena Booking Supervisor, Northern Railway, Railway Station, Mal-Godown Road, Sri Mukatsar Sahib.

.......Appellants- OPs Versus Malwinder Pal Singh son of Late S. Rajbir Singh Jodhu, resident of village Barkandi, Tehsil & District Sri Muktsar Sahib.

......Respondent- Complainant First Appeal against the order dated 15.12.2011 of the District Consumer Disputes Redressal Forum, Sri Mukatsar Sahib.

Quorum:-

Hon'ble Mr. Justice Gurdev Singh, President.

Shri Baldev Singh Sekhon, Member. Present:-

For the appellants : Shri Karamjit Verma, Advocate. For the respondent : Ex parte.

First Appeal No.211 of 2012. 2

JUSTICE GURDEV SINGH, PRESIDENT :

Feeling aggrieved by the order dated 15.12.2011 passed by District Consumer Disputes Redressal Forum, Sri Mukatsar Sahib (in short "District Forum"), the appellants/OPs have come up in the present appeal. Vide that order, the complaint filed by, Malwinder Pal Singh, respondent/complainant under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as "the Act") was allowed and OPs were directed to pay Rs.4800/-; Rs.2400/- as the refund of the railway tickets and Rs.2400/- as compensation, along with interest at the rate of 7.5% per annum from the date of the order till the date of payment, in case the said amount is not paid within two months of the receipt of the order.

2. As per the averments made by the complainant in his complaint, his daughter, Harminder Kaur, was studying in Bansal Institute, Kota (Rajasthan) and in order to leave her at that place he got TATKAL SEWA JOURNEY CUM RESERVATION TICKET PRS-NDLS TICKET NO.25259004 (in short "the ticket") of Train No. 09734 Kota Express from Hanumangarh Junction to Kota Junction by filling up the reservation requisition form correctly. Two berths No.B1/17 and B1/18 were booked on 28.4.2011 for Rs.2146/- for onward journey from 30.4.2011. OP No.4 on account of negligence and haste booked ticket No.25259004 of Train No.09734 Kota Express from Kota Junction to Hanumangarh Junction instead of from Hanumangarh Junction to Kota Junction. He along with his daughter boarded the First Appeal No.211 of 2012. 3 train at Hanumangarh Junction on 30.4.2011. When they reached Bikaner Junction, he was shocked to learn that the berths got booked by him had been reserved in the name of some other persons from Bikaner Junction to Kota Junction. They were ordered to leave the A.C. compartment in which he had booked the berths and he was asked to buy new tickets from Bikaner Junction to Kota Junction and to occupy the other compartment. Accordingly, he got two tickets and whole night he and his daughter were compelled to travel in second class. He was humiliated by the train staff in front of his daughter, which offended him very much. After coming back from Kota, he went to the office of OP No.4 and requested for the refund of reservation amount but that OP refused to refund the same. As a result of the negligence of OP No.4, their entire journey was spoiled and they had to face the rigor of the summer season. This also amounted to deficiency in service on the part of the OPs. He prayed for the issuance of the following directions to the OPs:-

"a) to refund the fare paid by him for the Air Condition Coach for train No.09734 and ticket No.25259004 dated 28.04.2011,

b) to pay compensation in the tune of Rs.20,000/- on account of loss suffered by him and his family,

c) to pay compensation in the tune of Rs.50,000/- on account of mental tension and unnecessary harassment suffered by him and his family,

d) to pay Rs.5500/- as litigation expenses." First Appeal No.211 of 2012. 4

3. OPs No.1 to 3 filed a joint written reply in which they averred that the ticket was issued in consonance with the requisition tendered by the complainant while getting reservation. At the time, he made a requisition for seeking reservation for the journey from Kota to Hanumangarh instead of Hanumangarh to Kota and the Reservation Clerk issued the ticket accordingly. The complainant was supposed to check the ticket before leaving the reservation counter. As the journey was to be undertaken after four days of the reservation, so it was for the complainant to check the ticket before boarding the train. For the harassment, if any, suffered by the complainant, he himself, was responsible. They have been unnecessarily dragged in the unwanted litigation for which they are entitled to damages and litigation expenses. There is no deficiency in service on their part nor any cause of action has arisen to the complainant to file this complaint against them. He cannot take benefit for his own wrong and is estopped from filing this complaint by his act and conduct. They have also averred that only the Railway Claims Tribunal has the jurisdiction to adjudicate the matter in dispute and the District Forum has no jurisdiction to hear and try the same. Though OP No.4 filed independent written reply, yet the same pleas were taken by him as have been taken by the other OPs. In addition to that, he also pleaded that the complainant is not a 'consumer' in respect of the claim made in the complaint. No consideration ever passed to him with regard to First Appeal No.211 of 2012. 5 issuance of the ticket. He had not rendered any sort of service in lieu of any consideration in his individual capacity.

4. The parties produced their evidence before the District Forum in support of their respective averments. After going through that evidence and hearing learned counsel on their behalf, the District Forum allowed the complaint, vide aforesaid order.

5. We have heard learned counsel for the appellants/OPs and have carefully gone through the records of the case.

6. It was vehemently argued by learned counsel for the OPs that in spite of the fact that specific plea was taken by the OPs that the District Forum had no jurisdiction to entertain and try the complaint and that the exclusive jurisdiction vested in the Railway Claims Tribunal, the District Forum never touched that aspect of the case while allowing the complaint. Railway Claims Tribunal has been constituted under the Railways Act and that Act excludes the jurisdiction of the other Foras from entertaining the matters covered by that Act. The complaint was liable to be dismissed on that very ground alone. He also submitted that the complainant in the reservation requisition form himself mentioned that the tickets were required for journey from Kota to Hanumangarh and the tickets were issued accordingly. He himself was negligent in filling up the reservation requisition form and in not checking the reservation slip before leaving the reservation counter or before boarding the train. Therefore, the OPs could not have been made liable for the refund of First Appeal No.211 of 2012. 6 the reservation charges etc. and the compensation as claimed by the complainant. He supported his submissions by the judgment of this Commission reported in "M/s Sai Traders, Coal, Iron Merchants v. Union of India" (CPC 1993 810). He prayed that the appeal be allowed, order of the District Forum be set aside and the complaint be dismissed.

7. In M/s Sai Traders' case (supra), it was held as under:-

"7. The subject matter of the complaint and the reliefs asked for by the complainant are matters referred to in Sub-Section (1) of Section 13 of the Railway Claims Tribunal Act, 1987. There is a complete bar of jurisdiction. Section 3 of the Consumer Protection Act, 1986 provides that the provisions of the Act are in addition to and not in derogation of any other law for the time being in force. It cannot be of any avail, for Section 15 of the Act No.50 of 1987 completely ousts the jurisdiction of the Court and any other authority. The complaint filed by the complainant on account of bar of jurisdiction under Section 15 of the Act No.50 of 1987 cannot be entertained, tried or decided by the State Commission under the Act." First Appeal No.211 of 2012. 7

8. Much water has flown since then. Similar matter came up for consideration before the Hon'ble National Commission in "UNION OF INDIA & ANR. v. SAVITABEN SUMANBHAI PATEL & ORS." [(III(2011) CPJ 34 (NC)]. It was urged before that Commission that the jurisdiction to decide the disputes between the aggrieved person and the Indian Railways falls clearly within the provisions of the Railway Claims Tribunal Act, 1987 and that the same do not fall within the purview of the Act. After discussing in detail Section 124A, Section 128 and other provisions of the Railways Act and the authoritative judgments on that point, it was held by the Hon'ble National Commission that Section 3 of the Act provides additional remedy to the consumer and, as such, the Consumer Foras are competent to entertain claims covered and filed under the Railways Act, 1989/Railway Claims Tribunal Act, 1987. In the light of this judgment, no weight is to be given to the submissions made by the learned counsel for the OPs that the District Forum had no jurisdiction to entertain and try the complaint.

8. The complainant for proving the averments made in the complaint proved on record his affidavit Ex.C-1 in which he deposed about all the facts as pleaded in the complaint. His deposition was duly rebutted by the affidavits of M.M. Singh, Senior Divisional Commercial Manager Ex.OP-1 and Mohan Lal Meena, Booking Supervisor Ex.OP-2. The OPs relied upon the reservation requisition form Ex.OP-3, which, according to them, was filled up by the First Appeal No.211 of 2012. 8 complainant, vide which he made request for reservation of two berths in the train. The District Forum discarded that reservation requisition form on the ground that wrong date was mentioned thereon as the ticket, Ex.C-2, was issued on 28.4.2011 and not on 26.4.2001 and that there is reason to believe that the complainant visited the railway station for booking on 28.4.2011. It is pertinent to note that in that reservation requisition form he not only disclosed his own name and the name of his daughter but also their respective age, number of the train and the date of journey. Merely mentioning of a wrong date cannot be made a ground for ignoring this form from consideration. In this reservation requisition form he specifically mentioned that the berths were to be booked for journey from Kota to Hanumangarh. Even in the reservation slip, it is mentioned that the journey was to be from Kota to Hanumangarh. This reservation slip is coming from the possession of the complainant himself. With such a reservation slip he could not have boarded the train for undertaking journey from Hanumangarh to Kota. He himself was to be blamed for filling up the reservation requisition form wrongly. He was required to check the contents of the reservation slip before leaving the reservation counter and before boarding the train. If he and his daughter were put to inconvenience the same was on account of his own fault and negligence. It cannot be said that the OPs were in any way negligent or that there was any deficiency in service on their part. Without properly appreciating the evidence on the record, the District Forum First Appeal No.211 of 2012. 9 recorded the finding in favour of the complainant. That finding has been recorded as a result of the misreading and misinterpretation of the evidence. Such a finding cannot be sustained and is hereby set aside. Accordingly the appeal is allowed, the order of the District Forum is set aside and the complaint of the complainant is dismissed.

9. The sum of Rs.2400/- deposited at the time of filing of the appeal along with interest which has accrued thereon, if any, shall be refunded by the registry to the appellants/OPs by way of a crossed cheque/demand draft after the expiry of 45 days.

10. The arguments in this case were heard on 19.3.2013 and the order was reserved. Now, the order be communicated to the parties.

11. The appeal could not be decided within the statutory period due to heavy pendency of court cases.




                                     (JUSTICE GURDEV SINGH)
                                            PRESIDENT




March 22, 2013                      (BALDEV SINGH SEKHON)
Bansal                                      MEMBER

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