State Consumer Disputes Redressal Commission
The Post Master vs Bhagat Ram on 16 May, 2016
Daily Order FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH. First Appeal No.170 of 2014 Date of Institution: 24.02.2014 Date of Decision: 16.05.2016 1. The Post Master, Post Office Kharar, District Mohali. 2. The Director, Foreign Speed Post, New Delhi Appellants/Opposite Parties Versus Bhagat Ram son of Jot Ram, resident of House No.201/6, Near Markfed Store, Badala Road, Anand Nagar, Kharar, District Mohali 143 001. Respondent/Complainant First Appeal against order dated 28.11.2013 passed by the District Consumer Disputes Redressal Forum, Mohali. Quorum:- Shri J. S. Klar, Presiding Judicial Member.
Shri.J.S Gill, Member Present:-
For the appellants : Sh.R.P Singh, Advocate For the respondent : Sh. Gurtej Singh Prince, Advocate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . J.S KLAR, PRESIDING JUDICIAL MEMBER :-
The appellants of this appeal (the opposite parties in the complaint) have directed this appeal against order dated 28.11.2013 of District Consumer Disputes Redressal Forum Mohali, accepting the complaint of the complainant by directing appellants of this appeal to pay the amount of Rs.33,650/- to respondent of this appeal along with interest @ 9% p.a from 03.02.2012 till actual payment, besides Rs.20,000/- as compensation for mental harassment and litigation expenses. The respondent of this appeal is the complainant in the complaint and appellants of this appeal are opposite parties in the complaint and they be referred as such hereinafter for the sake of convenience.
2. The complainant has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that his son Manmeet Singh sent a speed post/parcel no.EG959274273 from U.S containing I PAD-2 with I Pad Cover (Cost $601), Earphone (cost$50), 4 pairs of shoes, chocolates and sweet/toffis (cost $ 40), total worth of $ 771. After paying the charges for speed post $ 85 and 8 cents, the above parcel was sent at the address of the complainant. When complainant received the delivery of the speed post on 03.02.2012 at OP Post Office of Kharar, he found it to be opened, wherefrom some items were found missing. The complainant received the delivery of the speed post from the employees of OPs. The complainant wrote many requests and applications to OPs for deficiency in service, but to no effect. The office of OPs intimated to complainant, vide application dated 29.05.2012 that U/r received the articles on 07.02.2012 at Delhi Foreign Post and detained by Delhi Custom Authority on the same day, as unclaimed with detention no. D 22101/01/12. The complainant has made many requests to OPs to hand over the entire items sent by his son, but OPs failed to return them. The complainant also sent legal notice dated 22.04.2013 to OPs in this regard. The complainant, has thus, filed complaint against OPs praying for compensation of Rs.2 lac for deficiency in service on the part of OPs.
3. Upon notice, OPs appeared and filed written reply by raising preliminary objections that complainant has not approached the Forum with clean hands. The complainant has filed false complaint for his undue enrichment only. The complaint is liable to be dismissed, as the complainant is not a 'consumer' of the OPs. The parcel was neither booked by the complainant nor the services of OPs were availed by the complainant and he complainant has no locus standi to file the complaint against OPs. On merits, it was admitted by OPs that speed post article was booked by Manmeet Singh from USA. The cost of items as reproduced in paragraph of the complaint is stated to be wrong and anecdotal only. This fact was admitted by OPs that parcel was received in the office of OP no.1, complainant was asked to take the delivery of the same, but he refused to take the delivery on the allegation that some contents were missing. The parcel, as such was returned to the sender and articles were received in the Delhi Foreign Post on 07.02.2012 and was detained by Delhi Custom Authorities with detention no.D-222101/01/12 as unclaimed, as intimated by the Delhi SPC, vide letter no.SPC/CCC/INT(IW)51/34/2012-13 dated 29.05.2012. Pursuant to representation of the complainant, it was informed that items has been detained by the Delhi Custom Authority, as unclaimed and kept collect therefrom. Any deficiency in service was denied by OP and OPs prayed for dismissal of the complaint.
4. The complainant tendered in evidence, his affidavit Ex.CW-1/1 along with copies of documents Ex.C-2 to Ex.C-9. As against it; OPs tendered in evidence affidavit of Sh. Bishan Singh Senior Superintendent Post Office Chandigarh Ex.OP-1/1 along with copies of document Ex.OP-1 to Ex.OP-2. On conclusion of evidence and arguments, the District Forum Mohali accepted the complaint of the complainant by virtue of order dated 28.11.2013. Dissatisfied with the order of the District Forum Mohali dated 28.11.2013, the OPs the present appellants, carried this appeal against the same.
5. We have heard learned counsel for the parties and have also examined the evidence on the record of the case.
6. Evidence on the record has been examined by us with the able assistance of counsel for the parties. Ex.C-1 is legal notice sent by counsel for complainant to OP. Ex.C-2 is postal receipt thereof. Ex.C-3 is letter sent to Director Foreign Speed Post New Delhi by the complainant with regard to enquiry regarding speed post sent by his son from U.S to India. Another letter in continuation of the same sent by complainant to Senior Superintendent of Post Office Chandigarh is Ex.C-4. Deputy Manager Speed Post Centre New Delhi sent letter to the Manager Chandigarh SPC, vide Ex.C-5 to the effect that article was received back on 07.02.2012 at Delhi Foreign Post and detained by Delhi Customs Authority on the same day as unclaimed with detention no. D- 222101/01/12. Ex.C-6 is complaint of complainant to S.S.P Post Office regarding missing of the contents of article. Ex.C-7 is reply sent by SSP Post Offices Chandigarh to the Manager NSPC Chandigarh with regard to this matter. Ex.C-8 is legal notice and Ex.C-9 is post receipt thereto.
7. OPs relied upon affidavit of Bishan Singh Senior Superintendent Post Office Chandigarh Ex.OP-1/1. This witness stated in this affidavit that the complainant is not a 'consumer and is not entitled to seek any relief from. The complaint is alleged to be false and frivolous, as instituted by the complainant. It was stated in the affidavit that complainant refused to take delivery of the article alleging that the contents were missing and it was returned to sender, as refused on the same day and was received in the Delhi Foreign Post on 07.02.2012 and further detained by Delhi Custom Authorities with detention no.D-222101/01/12. He further stated that no relief can be claimed against OPs. Ex.OP-1 is copy of Article 1 to the effect that postal item shall remain the property of the sender until it is delivered to the rightful owner, except when the item has been seized in pursuance of the legislation of the country or origin or destination and, in case of application of Article 15.2.1 or 15.3 in accordance with the legislation of the country of transit. The sender of postal item may have it withdrawn from the post or have its address altered or corrected. The charges and other conditions are laid down in the Regulations. Ex.OP-2 is reply sent by Sr. Superintendent of Post Office Chandigarh to counsel for complainant, as replied to the legal notice.
8. From appraisal of record and hearing the respective submissions of counsel for the parties, we find that District Forum has mis-appraised the evidence on the record and failed to appreciate the controversy involved in this case. The Apex Court has held in " Union of India versus Mohd. Nazim", reported in AIR 1980 Supreme Court 431 to the effect that provisions of Section 2(f), 17 and 23(3) indicate that the post office is not a common carrier, it is not an agent of the sender of the postal article for reaching. It is really a branch of the public service providing postal services, subject to the provisions of the Post Office Act and the rules made thereunder. It has been observed in this authority that the Post Master General does not enter into any contract with a person, who entrusts to the post office a postal packet for transmission overseas. Apex Court has also held in " The Presidency Post Master and another versus Dr. U. Shanker Rao," Revision Petition Nos. 175 and 247 of 1992, decided on 15.04.1993, wherein it has been held as under :-
Post office-letter-late delivery- The services rendered by the post office are merely statutory and there is no contractual liability, establishing the post offices and running the postal service. The Central Government performs a governmental function and the government does not engage in commercial transaction with the sender of the article through post and the charges for the article transmitted by post is in the nature of charges posed by the State for the enjoyment of the facilities provided by the Postal Department and not in consideration of any commercial contract. The Post Office cannot be equated with a common carrier.
The Hon'ble National Commission has also examined this point in " The Post Master Imphal and others versus Dr. Jamini Devi Sagolband", reported in 2000(1) CLT Page 577 that relationship between the sender of postal article and the post office is governed by the Indian Post Office Act and not by law of contract or tort. There is no liability at all for loss or non-delivery of a postal article except in so far as specifically provided by the statute under Section 33 and Section 6 or any other regulation or rule. No allegation of any fraud or willful act or default on the part of any one of the OPs are made and complaint is liable to be dismissed. The National Commission has further held in Senior Superintendent of Post Offices Trivandrum and others versus Keltron Projectors Ltd, reported in 2002(3) CLT Page 498 that speed post parcel entrusted by the complainant returned undelivered since addressee refused to accept the parcel, as it was found in a damaged condition. The complainant claimed compensation and alleging deficiency in service. National Commission has also held that there was no justification for awarding any sum in excess of Rs.100/- under Section 6 of the Post Offices Act. National Commission has also held in The Director Postal Services A & N Inlands Port Blair and another versus Shyamali Ganguly, reported in 2003(3) CLT Page 582-83 and Union of India versus Madhu Gangrah, reported in 2004(1) CLT Page 311 that Section 6 of the Offices Act grants immunity to the postal authority unless there is express finding of any fraud or negligence.
9. We find from perusal of record that complainant has neither pleaded any fraud or fraudulent act nor any willful conduct in less delivery of the articles to him by OPs. In the absence of any above pleading, no evidence can be looked into on the record to this effect. Even otherwise, there is no evidence on the record adduced by the complainant to record the finding of any fraudulent act or willful default by OPs in delivery of the speed post articles sent from USA.
10. In view of our above discussion, the District Forum failed to take into account Section 6 of the Post Offices Act, which provides rather sovereign function on the OPs in discharge of their duty, as has been held by Apex Court in " Union of India versus Mohd. Nazim",(supra) the post office is not a common carrier; it is not an agent of the sender of the postal article for reaching at destination. Finding of the District Forum are against express mandate of Section 6 of Post Offices Act and cannot be maintained in this appeal.
11. In the light of our above discussion, order passed by District Forum under challenge in this appeal cannot be affirmed in this appeal. The order of the District Forum Mohali dated 28.11.2013 is set aside by accepting this appeal of the appellants and complaint filed by complainant is ordered to be dismissed.
12. The appellants had deposited an amount of Rs.25,000/- with this Commission at the time of filing the appeal and further deposited Rs.35,624/- in compliance with the order of this commission. Both these amounts with interest, if any, accrued thereon, be refunded by the registry to the appellants by way of crossed cheque/demand draft after the expiry of 45 days.
13. Arguments in this appeal were heard on 12.05.2016 and the order was reserved. Copies of the order be communicated to the parties as per rules.
14. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (J.S GILL) MEMBER May 16, 2016 (ravi)