State Consumer Disputes Redressal Commission
Kamal & Anr. vs Indian Post Office & Anr. on 16 January, 2023
FA/301/2018 MR. KAMAL & ANR. VS. INDIAN POST OFFICE & ANR. D.O.D. : 16.01.2023
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
Date of Institution: 07.07.2018
Date of hearing: 05.09.2022
Date of Decision: 16.01.2023
FIRST APPEAL NO.- 301/2018
IN THE MATTER OF
1. MR. KAMAL,
S/O MR. MAHAVIR SHARMA,
R/O 8375, FLOOR MILL, ROSHANARA ROAD,
DELHI-110007.
2. M/S DEVESH MEDITECH,
THROUGH ITS AUTHORIZED SIGNATORY,
MR. SUMIT SIKKA, S/O MR. C.B. SIKKA,
R/O 7897, DINA NATH ROAD,
ROSHANARA ROAD, DELHI-110007.
(Through: NS Legal Partners)
...Appellants
VERSUS
1. INDIAN POST OFFICE,
GENERAL MANAGER, DAK BHAWAN,
NEW DELHI-110001.
2. CHIEF POSTMASTER, GPO,
DELHI-110006.
(Through: Mr. Ravi Pal, Advocate)
... Respondents
ALLOWED PAGE 1 OF 13
FA/301/2018 MR. KAMAL & ANR. VS. INDIAN POST OFFICE & ANR. D.O.D. : 16.01.2023
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
Present: Mr. Ashok Kumar Bharti, proxy counsel for Mr.
Sudhanshu Sikka, counsel for Appellant.
Mr. Ravi Pal, counsel for Respondent.
Mr. S.B. Singh, Public Relation Inspector on behalf of
Respondent (India Post Office).
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL,
PRESIDENT
JUDGMENT
1. The facts of the case as per the District Commission record are:
"....on 10.03.2016 the complainant No.1 sent a speed post to a dealer namely Suraj Agencies at Allahabad on behalf of complainant No.2, who is the employer of the complainant No.1. It is alleged that the speed post was a big box having weight of 3230 grams containing Ligating Clips used for medical purpose in 14 small boxes costing Rs.1,500/- each i.e. Rs.22,050/- including taxes and the said speed post was also containing a retail invoice No. DM/199/15-16 of Rs.22,050/-. It is further alleged that on 14.03.2016 the speed post reached Allahabad to the said dealer and the said dealer was shocked to see that the speed post was badly tampered and then he asked the postman to check the weight of the speed post and whether the speed post is of the same weight that the complainant No.2 has sent but he found that it was not same so he refused to take the delivery of the speed post because it was tampered and he understood that the articles were missing from inside. It is alleged that the said dealer immediately called up the complainant No.2 and told about the condition of the speed post and also told him that it is badly tampered and the weight of the speed post was ALLOWED PAGE 2 OF 13 FA/301/2018 MR. KAMAL & ANR. VS. INDIAN POST OFFICE & ANR. D.O.D. : 16.01.2023 also not same as sent by the complainant. It is further alleged that the complainant No.2 immediately told the complainant No.1 to register a complaint with the concerned post office i.e. GPO, Delhi-06 to whom they had given the speed post on 10.03.2016 and the complainant No.1 was given an acknowledgement slip by the O.P-2 for the complaint he lodged in the post office. That on 16.03.2016 the complainant No.1 received a call from post office, Malka Ganj informing him that the said speed post has been received back unserved and the postman requested complainant No.1 to receive the same from the post office, Malka Ganj and thereafter the complainants received back the said speed post. It is alleged that the complainants were shocked to see the condition of the speed post because it was badly tempered. When the complainant No.1 had deposited the said speed post there was no tape on the speed post because as per the rules of the O.P-1 if anyone wants to send something through speed post they do not except that speed post which are packed with tape and when the complainant No.1 deposited the said speed post it was also not packed with any kind of tape but when the complainants on 16.03.2016 saw their speed post in the post office it was badly tampered and was again packed with tape and it was understood by looking at its condition that someone has opened the speed post and had stolen all the articles from inside and then again packed the speed post with tape. It is further alleged that thereafter the complainants were left with no other option but to dial 100 number and call the police officials. It is alleged that when the Police arrived in the post office the postmaster agreed to give an open delivery and also to give the details of the particulars which will be found from inside the speed post. It is further alleged that firstly the post office staff checked the weight of the speed post which was found to be 1495 grams but when the complainant No.1 deposited the same on ALLOWED PAGE 3 OF 13 FA/301/2018 MR. KAMAL & ANR. VS. INDIAN POST OFFICE & ANR. D.O.D. : 16.01.2023 10.03.2016 it was 3230 grams then post office, Malka Ganj opened the speed post it was found empty and the ligating clips were not found inside the speed post but the post office found a retail invoice of Rs.22,050/- from inside the said tampered speed post. It is alleged that the complainants have suffered tremendous anguish and mental trauma due to aforesaid acts of the O.Ps. On these facts complainants prays that the O.Ps be directed to pay a sum of Rs.17,47,050/- with interest @24% p.a. on cost of ligating clips, loss to the business, harassment, mental pain, agony, loss of prestige in society and cost of legal proceedings."
2. The District Commission after taking into consideration the material available on record passed the order dated 29.05.2018, whereby it held as under:
"The main controversy involved in the present case is as to whether the O.P is liable to make good the loss suffered by the complainants due to loss of article sent through O.P. The contents of written statement filed on behalf of O.P clearly admit that there was difference of weight of article at the time of booking of delivery but it has not been pointed out at whose instance the deficiency in the weight of article took away. The legal question arises as to whether the O.P is liable to make good the loss alleged to have happened in supply of full contents of the consignment. Section 6 of the Indian Post Office Act, 1898 exempts the Postal Authority from making good the loss or causing delay in delivery of the goods.
Section 6 of the Indian Post Office Act, 1898 which reads as under;
"Section 6. Exemption from liability for loss, misdelivery, delay or damage. - 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 ALLOWED PAGE 4 OF 13 FA/301/2018 MR. KAMAL & ANR. VS. INDIAN POST OFFICE & ANR. D.O.D. : 16.01.2023 post, except in so far as such liability may in express terms be undertaken by the (Central Government) concerned post-office 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 or default".
Vide Notification dated 21/1/1999, the Indian Post Office Rules have been further amended which is as follows :
"In case of delay in delivery of domestic speed post articles 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 charge paid.
In the event of loss of domestic speed post article or loss of its contents or damage to the contents, compensation shall be double the amount of composite speed post charges paid or Rs.1000/-whichever is less"
On reading the above it becomes crystal clear that the Postal Department and its Official are exempted from any liability for loss, misdelivery, delay or damage to any postal article in the course of transmission by post, unless it is establish that such loss, misdelivery or delay was caused fraudulently or by way of willful act or default. The provision of section 6 of Indian Post Office Act, 1898 came to be considered in case titled The Presidency Post Master and Anr. Vs Dr. U. Shanker Rao II (1993) CPJ 141 (NC) and also judgment in RP No.4567/2012 titled as Sr. Superintendent of Post Offices Vs Dharamveer Harijan and the Bench interpreted section 6 as under;
"The Government shall not incur any liability by reason of the loss, misdelivery or delay, 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 shall incur any liability by reason ALLOWED PAGE 5 OF 13 FA/301/2018 MR. KAMAL & ANR. VS. INDIAN POST OFFICE & ANR. D.O.D. : 16.01.2023 of any such loss, misdelivery, delay or damage unless he has caused the same fraudulently or by his willful act or default.
Counsel for the Revision Petitioner inter-alia relies on the said provision and contents that no claim will lie against the Postal Department or its officers merely on the ground that there has been loss/ misdelivery, delay or damage or to any postal article in the course of transmission by the Postal Department unless the same has been caused fraudulently by the officer complained against of the post office or by his willful act or any default. Under the scheme of the Act the claim for compensation will lie at the instance of the consumer only if there is deficiency in service. According to the Revision Petitioners the statutory protection to the Central Government which is in absolute terms stands as an exception to the general law relating to the commercial carriers, Post Office is a branch of public service functioning under a statute and the liability for misdelivery or late delivery of an article can be fastened on the postal department of its officers only on the basis of express provisions of the Post Office Act. 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, imposed 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 common carrier.
We are of the opinion that both the claim petitions referred to above are not maintainable in view of Section 6 of the Indian Post Office Act. As noticed earlier there is no ALLOWED PAGE 6 OF 13 FA/301/2018 MR. KAMAL & ANR. VS. INDIAN POST OFFICE & ANR. D.O.D. : 16.01.2023 allegation that the loss, misdelivery or delay occurred on account of fraudulent or willful act of any particular postal employee."
The bear perusal of the aforesaid authorities makes it abundantly clear that the Postal Authority is exempted under section 6 as to any loss, mis-delivery of postal articles. In the present case O.P cannot be made liable to make good the loss sought by complainants in view of the exemption clause mention in Section 6 of the Indian Post Office Act, 1898. The complainant has not alleged that the loss to goods has occurred due to willful act or default of the Postal Authority or some postal official has played fraud. However, since there is notification by the Indian Post Office of the rules, the complainant is entitled to compensation of Rs. 1,000/-. Ordered accordingly."
3. Aggrieved by the aforesaid order of the District Commission, the Appellants/Complainants have preferred the present appeal contending that the District Commission failed in observing that the subject speed post was returned back to the Appellants in tampered condition. Furthermore, the District Commission failed to appreciate the fact that there was a significant difference in the weight of the speed post, such that when the Appellants dispatched the subject speed post on 10.03.2016, the weight of the speed post was 3230 grams, but when it was returned, the post office staff checked the weight of the said speed post, which was 1495 grams and also the articles or items in the said speed post was missing. The counsel further contended that the District Commission wrongly relied upon the provisions of section 6 of the Indian Post Office Act, 1898. Therefore, the District Commission failed to consider that there is clear deficiency of service on the part of Respondents. Pressing the ALLOWED PAGE 7 OF 13 FA/301/2018 MR. KAMAL & ANR. VS. INDIAN POST OFFICE & ANR. D.O.D. : 16.01.2023 aforesaid contentions, the Appellants/Complainants prayed to set aside the order of the District Commission.
4. The Respondents/Opposite Parties on the other hand, denied all the allegations of the Appellants and submitted that there is no error in the impugned judgment as the entire material available on record was properly scrutinized before passing the said judgment.
5. We have perused the material available on record.
6. The first question for consideration before us is whether the Respondents were negligent in handling the subject speed post of the Appellants.
7. On perusal of record, we find that the speed post containing ligating clips was dispatched vide consignment no. ED977606958IN dated 10.03.2016 by the Appellants to Suraj Agencies, Allahabad-211001. Thereafter, the addressee i.e. Suraj Agencies, refused to accept the delivery due to the weight difference and tampered condition. Resultantly, the speed post in question was returned to the sender and it was received at Malka Ganj Post Office, Delhi for effecting its delivery to the sender on 16.03.2016. Following that, an open delivery was performed, and while the inventory was being prepared, the weight of the said speed post was found to be 1495 grams, as opposed to the booking weight of the said speed post, which was 3220 grams as per the booking receipt. Furthermore, the said speed post was discovered empty, with an invoice of Rs. 22,050/- for the articles in the subject speed post.
8. Further, the Respondents failed to provide any documentary evidence or detailed reason as to how the said speed post was in tampered condition and what constitutes the difference in weight of the said speed post. Therefore, in absence of any evidence on record, it clearly ALLOWED PAGE 8 OF 13 FA/301/2018 MR. KAMAL & ANR. VS. INDIAN POST OFFICE & ANR. D.O.D. : 16.01.2023 proves negligence on the part of the Respondents while handling the speed post in question.
9. The other question for consideration before us is whether the provisions contained in Section 6 of Indian Post Office Act, 1898, exempts the government as well as officers of the post office from any liability for mis-delivery, damage or loss to the postal article.
10. To resolve this issue, we deem it appropriate to reproduce section 6 of the Indian Post Office Act, 1898, which says as follows:
"Section 6: Exemption from liability for loss, misdelivery, delay or damage.
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 in so far as such liability may in express terms by 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 or default."
11. The interpretation of the aforesaid section has been discussed by the Hon'ble NCDRC in case titled as Post Master General, West Bengal Circle, General Post Office (GPO) v. Dipak Banerjee & Anr. reported as IV (2015) CPJ 329 (NC) wherein, it discussed as:
"11. The Section is in two parts. The first part provides for a complete immunity to the Government, unless some liability is undertaken by the Government under the statute in express terms. Similar immunity is extended to the officers of the post office. The second part carves out an exception to the blanket immunity to its officers and provides that they can incur liability if it is shown that the loss, misdelivery, delay or damage, etc. had been caused fraudulently or by the willful act or default of such an employee. Thus, a plain reading of the Section leaves little scope for doubt that unless it is proved that ALLOWED PAGE 9 OF 13 FA/301/2018 MR. KAMAL & ANR. VS. INDIAN POST OFFICE & ANR. D.O.D. : 16.01.2023 the loss, misdelivery or delay has been caused fraudulently or by a willful act or default on the part of its officer, no claim would lie against the Postal Department merely by reason of the loss, misdelivery or delay or damage to the postal article, as the case may be, in the course of transmission of the article by post. In other words, the provision, an antiquated piece of legislation, dating back to the year 1898, grants total immunity to the Postal Department from incurring any liability for delay in delivery of the article in the course of its transmission by post, unless a fraud or willful act or default on the part of its employee is proved."
12. From the analysis of section 6 of Indian Post Office Act, 1898 and from the aforesaid dicta, it is clear that in case of wilful act or default, the officers of post office will be held responsible under this section.
13. Further, we deem it appropriate to refer to the Revision petition no.
541 of 2016 titled as Department of Post and Ors. vs. Gajanand Sharma decided on 08.12.2016, wherein the Hon'ble National Commission has held as under:
"16. In order to give effect to the objective of the Act, i.e., to provide for better protection of the interests of the consumers, if an addressee of the letter is able to create a reasonable degree of probability that there was willful default on the part of an employee of the Postal Department, the onus would shift on to the said department to discharge the onus to prove its denial, particularly when the addressee, the aggrieved party, does not have any access to the internal working of the post office.
17. The fact remains that the Complainant, though, had sent the article/Application Form by Speed Post, on 08.05.2010 at 11.30AM from Mahua Post Office, Mahua, addressed to the Principal Registrar, High Court of Jabalpur, Madhya Pradesh, for the Post of Civil Judge, Junior Division, the last date of receipt of the said Application Form was 12.05.2010, he lost an opportunity of attending the Examination as the subject article was delivered to the addressee on 14.05.2010.
ALLOWED PAGE 10 OF 13 FA/301/2018 MR. KAMAL & ANR. VS. INDIAN POST OFFICE & ANR. D.O.D. : 16.01.2023
18. To reiterate, Learned Counsel for the Revision Petitioners took shelter under Section 6 of the Indian Postal Act and despite two opportunities given by this Commission, on 11.03.2016 and on 27.04.2016, to file Affidavit and a Better Affidavit, respectively, stipulating the reasons for the delay in the delivery of the article, the Department had stated in the Affidavits, that the relevant record was not available and, therefore, the exact reason could not be ascertained.
19. The only stand of the Postal Department in this case is that the relevant records are not available and therefore the reasons cannot be ascertained. The attitude of the Postal Department is a deliberate attempt to hide the real reason for the wrong doing of its employee(s) in not delivering the letter within the norms prescribed by the Postal Department itself. Such conduct of the Postal Department, leads to irresistible conclusion that there was a willful default on the part of its official(s) concerned, which is not being disclosed and, therefore, the case of the Complainant falls within the ambit of the exception carved out under Section 6 of the said Act. Having held so, and there being a clear deficiency of service under Section 2(1)(g) of the CPA, 1986, I am of the opinion that a reasonable compensation of 25,000/- awarded by the State Commission is completely justified."
14. Relying on the above settled law, it is clear that the burden of proof lies upon the post office (Respondents herein) to prove that there is no fraudulent or wilful default on its part. However, on perusal of record, the Respondents failed to adduce any such document which can compensate the reason for not delivering the said speed post in sound condition.
15. From the above discussion and settled law, it is a clear case of wilful negligence on the part of Respondents, therefore, they cannot take the shelter under the provisions contained in section 6 of the Indian Post ALLOWED PAGE 11 OF 13 FA/301/2018 MR. KAMAL & ANR. VS. INDIAN POST OFFICE & ANR. D.O.D. : 16.01.2023 Office Act, 1898. In the present case, the Respondents failed to deliver the subject speed post in question of the Appellants in sound condition as well as misplaced the items in the said speed post which clearly establishes deficiency of service on part of Respondents under section 2(1)(g) of the Consumer Protection Act, 1986.
16. Therefore, we set aside the order dated 29.05.2018 passed by the District Consumer Disputes Redressal Commission, Tis Hazari, Delhi-54. Accordingly, the present Appeal is allowed as under:
A. We direct the Respondents/Opposite Parties to pay a sum of Rs.22,050/- (the cost of articles lost in transit by the Respondents) as compensation within a period of 30 days from the date of present judgment i.e. 16.01.2023. B. In case the Respondent/Opposite Party fails to refund the amount as per the aforesaid clause (A) on or before on or before 15.02.2023, the entire amount is to be paid with an interest @ 9% p.a. calculated from 10.03.2016 (being the date of dispatch of the said speed post) till the actual realization of the amount.
17. In addition to the aforesaid and taking into consideration the facts of the present case, the Respondents are directed to pay a sum of:
A. Rs. 1,00,000/- as cost for mental agony and harassment to the Appellants; and B. The litigation cost to the extent of Rs. 25,000/-.
18. Application(s) pending, if any, stand disposed of in terms of the aforesaid judgment.
19. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986. The judgment be ALLOWED PAGE 12 OF 13 FA/301/2018 MR. KAMAL & ANR. VS. INDIAN POST OFFICE & ANR. D.O.D. : 16.01.2023 uploaded forthwith on the website of the commission for the perusal of the parties.
20. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) Pronounced On:
16.01.2023 ALLOWED PAGE 13 OF 13