State Consumer Disputes Redressal Commission
The Senior Superintendent Of Post ... vs Apple Trust & Management Trustee ... on 27 February, 2012
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Thiru.A.K. Annamalai, M.A., B.L., M.Phil., JUDICIAL MEMBER
Thiru.S.Sambandam, B.Sc., MEMBER F.A.35/2011 [Against order in C.C.No.51/2009 on the file of the DCDRF, Tirunelveli] DATED THIS THE 27th DAY OF FEBRUARY 2012
1. The Senior Superintendent of Post Offices, | Tirunelveli Division, | Appellants / Opposite Parties Tirunelveli. | |
2. The Sub-Postmaster, | Sankar Nagar Post Office, | Sankar Nagar.
Vs.
1. Apple Trust & Management Trustee, | Grace Hepziba, | W/o. Sundaram, HoH | 25/152, Railway Feeder Road, | Sankar Nagar. | |
2. Grace Hepziba, | W/o. Sundaram, | 25/152, Railway Feeder Road, | Respondents/Complainants Sankar Nagar. | |
3. Sundaram, | S/o. Subbiah Pillai, | 25/152, Railway Feeder Road, | Sankar Nagar. | |
4. Rubinath, | S/o. Sundaram, | 25/152, Railway Feeder Road, | Sankar Nagar. | |
5. Suresh, | S/o. Sundaram, | 25/152, Railway Feeder Road, | Sankar Nagar. | The respondents as complainants filed a complaint before the District Forum against the opposite parties praying for the direction to the opposite parties to pay Rs.50,000/- towards the deficiency in service, pain and sufferings and mental agony and to pay the cost. The District Forum allowed the complaint, against the said order, this appeal is preferred, praying to set aside the order of the District Forum dt.28.04.2010 in C.C.51/2009.
This appeal coming before us for hearing finally on 08.02.2012, upon hearing the arguments of the either counsels and perused the documents, as well as the order of the District Forum, this Commission made the following order:
Counsel for the Appellants/OPs : Mr.A. Ashok Kumar, Advocate.
Counsel for the Respondents/ Complainants : M/s. Sree & Associates, Advocate.
M. THANIKACHALAM J, PRESIDENT
1. The opposite parties are the appellants.
2. The complainants have applied for exemption, with the Income Tax Department and after enquiry, Income Tax Department, Madurai sent a communication to the first complainant on 23.07.2008 by Speed Post No.74319575-9, which was not delivered, whereas returned after 50 days to the Income Tax Department. By the return of this letter, the complainants were upto mental agony, harassment etc., and for this deficiency committed by the opposite parties, the complainants are entitled to a sum of Rs.50,000/- as compensation. Thus alleging for the recovery of a sum of Rs.50,000/-, a consumer complaint came to be filed.
3. The opposite parties, admitting the speed post from Madurai office to the Apple Trust, resisted the case that the postman after enquiry unable to find out the Trust, returned the speed post letter with remarks Enquiry, that upon complaint, when enquiry conducted, it revealed, there was no Sign Board indicating the name of the Trust whereas at the Door Number only a Xerox Shop was functioning, that the Postman gave intimation, on which basis, a person of the Trust approached the Post Office, who was directed to produce instruction letter, as if, the Trust was functioning, which was not complied with and therefore, the Speed Post has been returned to the Sender on 9.9.2008, which will not come within the meaning of deficiency, as well as consumer complaint itself is not maintainable, praying for the dismissal of the complaint.
4. The District Forum accepting the case of the complainant as gospel truth, not deviating from the complaint, taking into account the delay namely 50 days in keeping the Tappal, fixing deficiency, has directed the opposite parties to pay a sum of Rs.50,000/- as compensation, as claimed in the complainant with costs of Rs.5,000/-, which is impugned in this appeal.
5. The learned counsel for the appellants urged that the complainants are not consumers and therefore as such, the case itself is not maintainable, that when there was no service to be rendered to the complainants, by the opposite parties for consideration fixing deficiency, awarding an exorbitant amount of Rs.50,000/- is erroneous and liable to be upset, which is not seriously challenged. In this context, we have to see the dispute between the parties.
6. The first complainant claims to be a Trust, in which, other complainants are said to be the Trustees. As seen from the pleadings, they have sought for exemption from the Income Tax, invoking 12-AA and 80G of the Income Tax Act. On that basis, enquiry was conducted and on the basis of the report submitted, the Income Tax Department of Madurai, had sent a communication to the first opposite party under Speed Post No.74319575-9 on 23.07.2008.
The said letter was not delivered to the complainants, whereas it was returned to the Sender after a delay of 50 days or so that is on 09.09.2008. The complainants alleging deficiency, as if, the non-delivery of the letter sent to them, had caused mental agony etc., further pleading deficiency in service has filed the case, ended in their favour giving 100% success, which is impugned.
7. As pleaded even in the complaint, the Speed Post was not sent by the complainants to anybody, whereas admittedly, the Speed Post was sent by paying consideration by the Income Tax Department of Madurai to the first complainant. Thus, it is seen, the first complainant or the complainants have not paid consideration, for hiring the service of the second opposite party, or the first opposite party as the case may be. Therefore, the complainants will not come within the meaning of consumer, as defined under Section 2(d)(ii), which says A consumer means a person who hires or avails of any services for a consideration which has been paid. Admittedly, the complainants have not paid any consideration and they have not availed the services of the opposite parties also, and therefore, they are not consumers, which should follow the complaint itself is not maintainable.
8. In the complaint though it is elaborately stated about the non-delivery of the speed post, we find no plea, how the complainants come within the meaning of consumer. We are conscious of the fact, that a beneficiary of such service also can be brought in, within the definition of consumer, thereby maintaining a case. In this case, by the communication sent by the Income Tax Department, the complainants may be the beneficiaries, and on the basis of hiring the service for consideration. The Legislatures contemplating this kind of problem, if both are allowed to file a complaint, that may work hardship, very cleverly framed the definition, giving right to the beneficiary also to file a case adding .includes any beneficiary of such service other than the person who hires or avails .with the approval of the first rendered person thereby making clear, there should be approval of the person who availed the service. Thus, it is clear, in the absence of approval from the person who hired the service, a beneficiary cannot independently file a consumer complaint, claiming as a consumer, which was lost sight of by the District Forum. No such plea also has been taken. The District Forum in its hasty decision, without understanding the law, thinking that they are favouring the consumer did injustice, by allowing this complaint offending the law, which we are unable to detain as, correct decision. Even on merit also, the order of the District Forum cannot be sustained.
9. The Post Man after receipt of the speed post from the Sender, went to the address given and unable to identify the Trust, since in the address, there was a Xerox shop. Then giving intimation, he returned the speed post. Thereafter when a man claiming, working in the Trust, approached the Post Office, they requested him, to furnish certain details, which were not furnished, therefore, they were unable to hand over the speed post. For this, when there are clinching evidence, the District Forum has recorded a finding, in Para 6, as if, there was no evidence that a person from the first complainants Trust approached for delivery, who was instructed to get a letter regarding existence of the Trust, closing eyes to read the document. Ex.A3 is the Statement given by third complainant. In this statement, the third complainant has admitted that intimation was given orally to one Tiruvengadam, who was working in the Trust with instruction to produce a letter regarding the address in order to receive the speed post. He has also further stated, that when Tiruvengadam had gone to the Post Office with a letter, they have refused to receive the same, further stating that they have not requested the details regarding the Trust. When the complainant has reported about the non-delivery, Superintendent of the Post Office enquired the matter, which revealed that there was no Sign Board indicating the name of the Trust [Ex.A6] and the Postman had requested the concerned person of the Trust, to give instruction to the Sub-Postmaster about the existence of the Trust and the article would be kept in deposit till he produce the instruction, and since none had turned to take delivery, the speed post was returned to the Sender on 9.9.2008. If we read Ex.A6 coupled with Ex.A3 that makes crystal clear, that the Postman had given instruction to the person in the address, and the complainant alone failed to claim the letter, producing necessary certificate regarding the address, thereby they have committed deficiency in service, not the opposite parties. For the retention of the letter for 50 days in the Post Office, the second opposite party cannot perse branded, as deficiency in service, as incorrectly held by the District Forum. When the Postman had given instruction, awaiting request for delivery, probably to help the addressee, they have retained the speed post, that will not come within the meaning of deficiency in service. If they have not given any information that can be faulted, that too, not by the complainants, who are not the beneficiaries coming within the meaning of consumers, which is supported by a ruling of the National Commission in Union of India & Ors. Vs. Achintam Kilikdar, reported in IV [2009] CPJ 97 [NC], wherein it is held, beneficiary means other than the person, who hires or avails service for consideration, would fall within definition of consumer, when service availed by hirer with approval of beneficiary of service for consideration, which is absent in this case. As ruled by the above decision, and for the reasons assigned supra, we conclude that there was no deficiency in service and the complainants are not consumers and unfortunately the District Forum exceeding its jurisdiction, assuming it has every power on earth, unnecessarily punish the opposite party, which should be protected, erasing the order, for which, the appeal deserves acceptance.
10. In the result, appeal is allowed, the order of the District Forum in C.C.51/2009, dt.28.04.2010 is set aside, and the complaint is dismissed.
Considering the facts and circumstances of the case, there will be no order as to cost, throughout.
11. The Registry is directed to handover the Fixed Deposit Receipt, made towards the mandatory deposit, to the appellants / opposite parties duly discharged, since appellants succeeded, and there is no need to retain the FDR.
S. SAMBANDAM A.K. ANNAMALAI M.THANIKACHALAM MEMBER JUDICIAL MEMBER PRESIDENT