National Consumer Disputes Redressal
Union Of India, vs M.L. Bora, on 13 October, 2010
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.2411 OF 2006 (From the Order dated 26.4.2006 in Appeal No. 551/A/2002 of State Consumer Disputes Redressal Commission,West Bengal) 1. Union of India, Office of the Joint Legal Remembrancer, 2&3 Kiran Sankar Roy Road, Calcutta. 2. Department of Post & Telegraph, New Delhi. 3. The Director, Calcutta General Post Office, G.P.O. Building, Calcutta-87001. 4. The Chief Post Master General, West Bengal Circle, Yogayog Bhawan P-36, C.R. Avenue, Calcutta-700 012. 5. The Post Master General Calcutta Region, Yogayog Bhawan P-36, C.R. Avenue, Calcutta-700 012. Petitioners VERSUS M.L. Bora, Registrar & Constituted Attorney Of Century, Enka Limited Having registered Office at Circular Court, 5th Floor 8, A.J.C. Bose Road, Calcutta-700017 Subsequently changed to: Registrar & Constituted Attorney Of Century Enka Limited Having registered office at Birla Building, 7th Floor, 9/1, R.N. Mukherjee Road, Calcutta-700001. Respondent BEFORE: - HONBLE MR. JUSTICE ASHOK BHAN, PRESIDENT HONBLE MRS. VINEETA RAI, MEMBER For the Petitioners: R.N. Singh, Advocate For the Respondent: Mr.O.P. Gaggar, Advocate. PRONOUNCED ON: 13. 10.2010 O R D E R
ASHOK BHAN J., PRESIDENT Union of India, Department Post & Telegraph and others have filed this Revision Petition against the decision/Order dated 26th April, 2006 passed by the State Consumer Disputes Redressal Commission, West Bengal (for short, the State Commission) in Appeal No.551/A/2002 whereby the State Commission has dismissed the Appeal filed by the Petitioners and affirmed the Order dated 16th September, 2002 passed in CDF No.1203/99 and 1255/99 filed by the Respondent-Complainant . The Petitioners have been directed to pay a total sum of Rs.2,58,354/- in CDF Case No.1203/99 and Rs.1,76,244/- in CDF case No.1255/99 towards the costs and compensation as stated in different heads of account in the complaint.
Respondent-Complainant filed two complaints before the Calcutta District Forum, Unit-I, registered as CDF 1203/99 and CDF-1255, alleging inter alia non-delivery of 532 registered letters containing new share certificates to the respective share holders in exchange of their old share certificates The posting of such certificates began in 1997 and continued on different dates since then. Those share certificates were of the face value of Rs.10/- each and they were sent to about 20,000 share holders of the Respondent-Company. On being informed by the share holders that they had not received the new share certificates in exchange of their old ones, the Respondent made enquiry from the Petitioners and was informed that the shares had been lost in transit. Aggrieved of this, the Respondent filed complaint before the District Forum.
Pursuant to the show cause notice issued, the Petitioners entered appearance and filed their written objections stating that the complaints filed were baseless, vexatious and frivolous in nature. That Respondent -Complainant was not entitled to any relief in view of Section 6 of the Indian Post Office Act , 1898 which grants complete immunity to the Government for the loss, mis-delivery, delay and damage to the postal articles until and unless it is proved that the loss was caused due to fraudulent and/or willful act of any officer of the Post Office in misdelivering or loss of article. On merits stand taken by the Petitioners was that the alleged registered articles were lost in transit due to short landed of registered bags at different airports in view of short landing certificates issued by the Indian Airlines. It was further stated that Section 3 of the Consumer Protection Act only provides additional remedy for redressal of grievance but if the remedy is barred under any other law, no relief can be granted under the Act. It was submitted that in the present case Section 6 of the Indian Post Office Act bars the claim of the Respondent and therefore, the complaint was not maintainable.
The District Forum after considering the pleadings and the evidence produced by the parties, allowed the complaint and ordered that:
both the cases bearing no.CDF-I/1255/99 and CDF-I/1203/99 are allowed on contest without cost. The OP shall pay a sum of Rs.2,58,354/- in case No.CDF-I/1255/99 and Rs.1,76,244/- in case No.CDF-I/1203/99 being registration charges of the registered articles posted from the OP-GPO, Calcutta together with other expenses and costs incurred including litigation cost for non-delivery of the said registered articles to the addressees concerned within 15 days from the date of receipt of the order.
Aggrieved by the Order passed by the District Forum, Petitioners preferred an Appeal before the District Forum which has been dismissed by the impugned Order.
Counsel for the parties have been heard. Section 6 of the Indian Post Office Act, 1898 reads as under:
Exemption from liability for loss, misdelivery, delay or damge The Government shall not incur any liability by reason of the loss, misdelivery or delay of, or damage to any postal article in course of transmission by post, except insofar as such liability may in express terms be undertaken by the Central Government as hereinafter provided; and no officer 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 of default.
Section 6 is in two parts. The first part deals with the liability of the Government and the second part deals with the individual liability of the postal employees. The first part of Section 6 absolves the Government of any liability by reason of loss , misdelivery or delay or demage to any postal article in the course of transmission by post except in so far as such liability may in express terms undertaken by the Central Government as provided by the statute. Second part provides that no officer of the Post Office shall incur any liability by reason of such loss, misdelivery, delay or damage unless he has caused the same fraudulently or by his willful act or default.
In the present case, no individual officer of the Department of Post Office has been made a party Respondent alleging therein that loss, misdelivery, delay or damage had been caused by the said employee with fraudulent intention or by willful act or default on his part. Insofar as the Government is concerned Section 6 grants complete immunity to the Government of liability for loss, misdelivery, delay or damage to the postal articles. The scope of Section 6 was considered comprehensively by a five Members Bench of this Commission in the case of Post Master, Imphal & Ors. vs. Dr. Jamini Devi Sagolband -
I(2000)CPJ 28(NC) in which it was held in paras 7, 9 and 13 as under:
7.
The Section very clearly lays down that the Government shall not incur any liability by reason of the loss, misdelivery or delay of or damage to, any postal article in course of transmission by post, except insofar as such liability may in express terms be undertaken by the Central Government as provided by the statute and no officer 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. There are some provisions in the Act where specifically Government has been made liable to pay compensation for the lost postal articles. For example, Section 33 categorically says that subject to such conditions and restrictions, Central Government shall be liable to pay compensation for insured postal article. But where there is no such specific provision in the Act for payment of compensation, Section 6 grants complete immunity to the Government for liability for loss, misdelivery, delay or damage to the postal articles.
The second part of Section 6 deals with individual liability of the postal employees but states that no officer 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. In this case there is no allegation that the Post Master or the Director or the Director General was guilty of fraud or willful act or willful default which led to non-delivery of the postal article. An officer of the post office may be held liable for any loss, misdelivery, delay or damage if it can be proved that he has caused such loss, misdelivery, delay or damage by some fraudulent act or willful act or default.
In other words, the person who has committed the offence can be sued for damage but no action will lie against either the Central Government or any of its officers vicariously for the wilful act or default of the dealing clerk or postal peon. The allegation in this case was that the dealing clerk had negligently sent the postal as VPL. If that is the allegation, the proceedings should have been taken against the dealing assistant or the postal clerk who was held guilty of this willful default.
But the Director General or the Director or the Post Master cannot be made liable vicariously for the willful act or default of the dealing assistant.
9 It is to be noted that the judgments of the Courts are based on two fundamental principles. One is the absolute protection afforded to the Government and also the Government servants who had not dealt with the postal articles themselves by Section 6. The other is the nature of postal service provided by the Government. The postal service provided by the Government extends throughout the territory of India. A letter sent from the remotest village in Kashmir will reach the addressee at the outermost point of Kanyakumari. A vast network has been built by the Government to provide this service . It has been emphasized that by posting a letter or handing over a packet at the post office for transmission to the address of the addressee, the sender does not enter into any contract with the Government. The sender really avails of a service statutorily provided by the Government. It is true that postage stamps have to be affixed but that is for augmentation of Government revenue. It is not in the nature of a price paid for the service.
13. That apart acceptance of the contention of the complainant will lead to disastrous consequences. Assuming that 10 lakh postal articles are posted all over India every day (the figure must be much more) and in 1% cases there is delay in delivery or loss of the postal packet, if the Government has to pay compensation for 1,000 delayed packets a day and if, as in the case, compensation of Rs.20,000/- is awarded, the Government will have to pay compensation of Rs.21 crores a day which will come to Rs.730 crores a year. No Government can bear the brunt of this sort of liability in rendering a valuable public service to the people. Either the postal service will have to be closed down or the charges enhanced drastically to bring home nearly another Rs.800 crores of revenue. It may be noted that we have no correct figure of letters and postal articles sent all over India. According to a judgment of Division Bench of the Kerala High Court to which we shall presently refer it must run into billions. The Government gives much more in service than it get in revenue. That is the reason for enacting Section 6 of the Indian Post Office Act which gives absolute protection to the Government against any claim for damages on account of loss of a postal article except in cases and to the extent to which it has been specifically provided in the Act itself.
As the Supreme Court has pointed out the Post Office is not a common carrier, it is not an agent of the sender for sending of the postal articles to the addressee. It is really a branch of the public service subject to the provisions of the Indian Post Office Act and the rules made thereunder.
Section 6 grants complete immunity to the Government for the loss, misdelivery or damage to the postal articles. In the present case neither any allegation has been made against any officer of the Postal Department that the loss or damage was caused due to fraudulent or willful act or default of such an officer, nor any of the employees of the Department has been impleaded as a party-Respondent making allegations as stated above.
In the absence of same no relief can be granted against any of the officers of the department.
We, respectfully follow the view taken in the aforesaid judgment and set aside the interpretation put by the Fora below on Section 6, as the same runs counter to the law laid down by this Commission.
For the reasons stated above the order under revision is set aside and the complaint is ordered to be dismissed with no order as to costs.
.. . . . . . . . . . . . . . . (ASHOK BHAN J.) PRESIDENT . . . . . . . . . . . . . . . . (VINEETA RAI) MEMBER