State Consumer Disputes Redressal Commission
The Sub Post Master vs Sahib Singh on 2 March, 2010
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
SCO NOS.3009-12, SECTOR 22-D, CHANDIGARH.
First Appeal No.111 of 2010
Date of institution: 27.01.2010
Date of decision : 02.03.2010
1. The Sub Post Master, Post Office, Nawanshahr, Near BSNL Office,
Nawanshahr, SBS Nagar.
2. The Head Post Master, Main Post Office, Rajkot, Gujrat.
.....Appellants
Versus
Sahib Singh s/o Sh.Ram Singh retired Professor & Medical Officer resident
Subhash Colony, Near R.K.Arya College Play Ground, Rahon Road, Nawanshahr,
Distt. Shahid Bhagat Singh Nagar.
.....Respondent
First Appeal against the order dated 24.12.2009
passed by the District Consumer Disputes
Redressal Forum, Shaheed Bhagat Singh Nagar.
Before:-
Hon'ble Mr.Justice S.N.Aggarwal, President
Mrs.Amarpreet Sharma, Member
Present:-
For the appellants : Sh.R.P.Singh, Advocate JUSTICE S.N.AGGARWAL, PRESIDENT Sahib Singh respondent had sent a bank draft dated 22.05.2009 for Rs.20,000/- to Sh.Rasasharam Pharma Laboratories (near Rajkot Gondal Bye Pass, Gujrat) by speed post dated 23.05.2009 through the appellants. Even after the expiry of 3 months, the parcel of demand draft did not reach the destination. The query was made from the appellants. There was no favourable or satisfactory response either to the telephonic enquiries or to the personal visits of the respondent in the office of the appellants. They used to take lame excuses which increased the harassment and mental agony of the respondent. Since the amount did not reach the addressee, therefore, the respondent could not get the medicines required to set up his Ayurved Sewa Ashram (a charitable Ayurvedic Ashram). It First Appeal No.111 of 2010 2 gave a great set back to the respondent at the initial stage. Alleging deficiency in service on the part of the appellants, the respondent filed a complaint against them in the learned District Consumer Disputes Redressal Forum, Shahid Bhagat Singh Nagar (in short "the District Forum") for refund of Rs.20,000/- with interest, compensation amount of Rs.10,000/- and Rs.50,000/- as compensation for financial loss in the business and in the reputation.
2. The appellants filed the written reply. It was pleaded that the speed post service was run by the Department of Posts, Government of India. Therefore, the Secretary, Department of Post Offices , Government of India, New Delhi was a necessary party. The protection of Section 6 of the Indian Post Office Act, 1898 was also claimed. It was denied if there was any direct contractual liability of the appellants.
3. On merits, it was admitted that the respondent had sent parcel by speed post on 23.5.2009. They had also received a complaint dated 25.6.2009 from the respondent. The enquiries were made but the article under reference was not found. Efforts were made to search the article but the article could not be traced out. Therefore, the respondent was entitled to the compensation amount of Rs.44/- under the Rules which amount was sanctioned for payment to the respondent. Dismissal of the complaint was prayed.
4. In order to prove his case, the respondent filed his affidavit Ex.CW1/A. He also proved documents Ex.C1 to Ex.C5. On the other hand, the appellants filed the affidavit of N.R.Meena, IPS, Senior Superintendent of Post Office, Division Jalandhar as Ex.RW1/A and also proved document Ex.R1.
5. After considering the pleadings of the parties and the affidavits/documents produced on the file by them, the learned District Forum accepted the complaint partly and awarded a sum of Rs.10,000/- as compensation to the respondent vide impugned order dated 24.12.2009.
6. Hence, this appeal.
First Appeal No.111 of 2010 3
7. The submission of the learned counsel for the appellants was that the appellants were protected by the provision of Section 6 of the Indian Post Office Act. Therefore, it was prayed that the appeal be accepted and the impugned judgment dated 24.12.2009 be set aside. Reliance was placed on the judgment of the Hon'ble Supreme Court reported as "Union of India v. Mohd. Nazim, AIR 1980 Supreme Court 431".
8. This submission has been considered.
9. So far as the judgment of the Hon'ble Supreme Court is concerned, it does not deal with the provisions of Section 6 of the Indian Post Office Act. Moreover, the facts of that case were also different. The amount was recoverable from Pakistan. In between, the partition had taken place and because of stop of communication between the two countries, the amount could not be recovered from Pakistan by the Post Office in India. Therefore, the complaint filed by the person against the Indian Post Office was dismissed.
10. In the present case, the respondent had sent the bank draft for Rs.20,000/- through speed post agency of the appellants. It was to be delivered to Shri Rasasharam Pharma Laboratories (Near Rajkot Gondal Bye Pass, Gujrat). Since the draft did not reach the destination, therefore, the complainant could not receive the medicines from them. Therefore, the respondent suffered both ways. He lost the amount of Rs.20,000/- of the bank draft which was sent through the appellants. He also could not get the medicines which were required by him to set up a charitable institution.
11. Section 6 of the Indian Post Office Act reads as under : -
"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 First Appeal No.111 of 2010 4 Government as hereinafter provided; and no office of the Post Office shall incur any liability by reason of any such loss, misdelivery, delay or damage, unless he has caused the same fraudulently or by his willful act or default."
12. This provision was considered by this Commission in the judgment dated 30.11.2007 passed in First Appeal No.387 of 2004 titled Postmaster, Post Office, Ferozepur City & another v. Chhabila Parshad. In this case also, the respondent had sent the bank draft for Rs.8000/- for delivery to his father which was not delivered. The provisions of Section 6 were discussed as under : -
"11. Section 6, however, while exempting the Government from its liability by reason of loss, mis- delivery or delay or, or damage to any postal article in the course of transmission by post, creates an exception that where it is proved that the said loss, mis-delivery or delay or damage to any postal article in the course of transmission by post has been caused fraudulently or by willful act or by default, then the exemption clause shall not apply. In the present case, it is not the case of delay-delivery, it is the case of loss.
12. Now the question is whether the willful act and willful default on the part of the appellants is proved or not. In this context, reference may be made to the judgement of the Hon'ble Tamil Nadu State Commission, Chennai reported as 'Post Master, Krishnagiri Post Office & Anr. Versus P.Pasupthi II(2003) CPJ 508'. It was also a case in which the money order was sent but it was not received by the First Appeal No.111 of 2010 5 addressee nor it was received back by the sender. It was considered in the judgement as to in which circumstances the exception to Section 6 shall apply. "16. The moot question that arises for consideration in the light of the legal provisions as stated above is as to whether there is any material placed on record pointing out the practice of fraud or willful act or default on the part of any officer of the Post Office in question in the case on hand. The further incidental question that may arise for consideration is as to what is the sort of proof on such aspects of the matter which is required to mulct liability either on the Government or any officer of the Post Officer in question.
17. The general rule is that as and when any person like the complainant coming forward with a complaint alleging the practice of fraud or willful act or default on any of the officer of the Post Office in question must have to prove the same in order to mulct liability upon such officer against whom the complaint is launched.
18. Such a general rule is not without any exception..................................... The complainant cannot at all be expected to have any sort of a knowledge as relatable to further acts done by the opposite parties 1 and 2 in the despatch of the money order form and other related matters so as to see that the payment under the money order form was to be duly effected to the addressee. It is incumbent for the opposite parties 1 and 2 to give particulars or other First Appeal No.111 of 2010 6 details as to in what manner they have effected the despatch of the money order form from that Post Office to the post office of the addressee enabling the Post Office of the addressee to effect payment of the money order by the personnel of the Post Office to the addressee inasmuch as those matters are exclusively within the personal knowledge of the opposite parties 1 and 2.
19. Relevant at this juncture to refer to the sanguine provisions as adumbrated under Section 106 of the Indian Evidence Act, 1872 (for short, "the Act, 1872"). The said section deals with burden of proving fact especially within knowledge. The section reads as under:
"106. Burden or proving fact especially within knowledge - When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Two illustrations are appended to that section. They read as under:
(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
(b) A is charged with traveling on a railway without ticket. The burden of proving that he had a ticket is on him.
20. On the face of Section 106 of the Act, 1872, it goes without saying that the opposite parties 1 and 2 First Appeal No.111 of 2010 7 must have to divulge all information within their exclusive knowledge as relatable to the despatch of the money order form to the addressee Post Office and other relevant details thereto for making the payment of the money due under the money order to the addressee stated therein. In the case in hand, there is total absence of proof on the part of the opposite parties 1 and 2 on such aspect of the matter. Such being the case, we rather feel, that we are not far wrong in stating that we are entitled to draw an adverse inference under Section 114(g) of the Act, 1872 which prescribes that the evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. Such being the case, we are of the view that a legitimate inference could be drawn on the facts and in the circumstances of the case that either a fraud or willful act or default had been committed by the opposite parties 1 and 2 which resulted in not effecting the payment of money due under the telegraphic money order sent by the complainant to the payee without any loss of time."
13. In the present case also, the registered letter did not reach the addressee. It was not sent back to the sender. It was not traced at all. The complainant lodged the complaints with the appellants. Some improvement was made by the appellants among themselves but the outcome was nil. The complainant was kept awaiting for months and months but no First Appeal No.111 of 2010 8 whereabouts of the registered letter were traced nor the complainant was informed. It is a case again in which an inference has to be drawn that there was willful act and willful default on the part of the appellants and the present case clearly came within the purview of exception to Section 6."
13. In the present case also, the parcel of bank draft did not reach the destination. It was never sent back to the respondent. The appellants have not placed on the file any document to show if the parcel of the Bank draft was sent to the proper place, where it was lost, whether the responsibility was fixed and what correspondence was exchanged between the branches of the appellants.
14. Therefore, the case of the appellants fell within the mischief of wilful act or default on the part of the officials of the post office.
15. The learned District Forum has awarded compensation amount of Rs.10,000/- which is reasonable and proper.
16. There is no merit in the present appeal and the same be dismissed.
17. The appellants had deposited an amount of Rs.5,000/- with this Commission at the time of filing of the appeal. This amount of Rs.5,000/- with interest accrued thereon, if any, be remitted by the Registry to the respondent by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellants. Remaining amount shall be paid by the appellants to the respondent immediately
18. The arguments in this case were heard on 24.02.2010 and the order was reserved. Now the order be communicated to the parties.
(JUSTICE S.N.AGGARWAL) PRESIDENT (MRS.AMARPREET SHARMA) MEMBER March 02, 2010.
Paritosh