National Consumer Disputes Redressal
1. Sr. Supdt. Of Post Offices & Anr. vs Shri Mahabir Prasad & Anr. on 4 July, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2186 OF 2013 (Against the order dated 03.01.2013 in Appeal No. 1316/2012 of the State Commission, Haryana, Panchkula) 1. Sr. Supdt. Of Post Offices NIT, Faridabad 2. Shri Babu Ram Postman C/o Sub Post Master Post Office Sector 16-A, Faridabad ....... Petitioners Versus 1. Shri Mahabir Prasad R/o H. No.569, Sector-19, Faridabad At Present : R/o House No.37, Ward No.17 Panchham Mohalla Charkhi Dadri Distt. : Bhiwani, Haryana 2. The Estate Officer HUDA, Sector 14, Gurgaon ... Respondents BEFORE: HON'BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HON'BLE MRS. REKHA GUPTA, MEMBER For the Petitioner : Mr. Roshan Lal Goel, Advocate Pronounced on : 4th July, 2013 ORDER
REKHA GUPTA Revision Petition No.2186 of 2013 has been filed under section 21 (b) of the Consumer Protection Act, 1986 (short, Act) against the impugned order/judgment dated 3.1.2013, passed by Haryana State Consumer Disputes Redressal Commission, Panchkula (short, State Commission) in First Appeal No.1316/2012.
Brief facts of the case are that respondent no.1/complainant had applied for allotment of a residential plot of 6 Marlas in Sector-57, Gurgaon to the Estate Officer, HUDA, Gurgaon, vide application No.11938 registered as G-57, 256681. For further correspondence the address in the application was given as H.No.569, Sector-19, Faridabad of respondent no.1s son-in-law and he had authorized Shri Manoj Kumar to receive all letters on his behalf from postal authorities. On the draw of lots, the plot of land was not allotted to the respondent no.1. The respondent no.1 came to know that a registered letter containing refund of earnest money of Rs.51,030/- was sent by the respondent no.2 to the respondent no.1 at his given address i.e. H. No.569, Sector-19, Faridabad. However, neither the registered letter was delivered to the authorized person of the respondent no.1, by the postman of the office of the petitioner no.1, nor was it returned to the respondent no.2.
The registered letter sent by the respondent no.2 containing refund of earnest money of Rs.51,030/- was marked to one Shri Babu Ram postman on 22.12.2004 who refused to deliver the same to Shri Manoj Kumar, the authorized representative of respondent no.1 and asked the respondent no.1 to collect it from the Post Office, Sector-16-A, Faridabad. It is also mention that even on production of authority letter, the registered letter in question was not delivered to authorized person of the respondent no.1 for some unknown reasons.
Shri Manoj Kumar had addressed a complaint letter dated 28.12.2004 to respondent no.1 narrating the entire episode and even after the said complaint, the postman neither delivered the said registered letter to Manoj Kumar, Attorney of Shri Mahabir Parshad, respondent no.1 nor returned the said registered letter to the respondent no.2.
The respondent no.1 also wrote a letter to respondent no.1 and the Secretary, Deptt. of Posts, Dak Bhawan, New Delhi. In response to this letter, the Asstt. Director General (PG), Ministry of Communication and I.T., Deptt. of Posts, Dak Bhawan, Sansad Marg, New Delhi vide their letter No.F-No.13-9/05 PG dated 2.9.2005 intimated that the Dealing Assistant of Speed Post Article is responsible for the loss of the said article and the Manager, SPC has been addressed to pay the compensation to the sender and amount of compensation will be recovered from the official at fault in addition to disciplinary action.
Respondent no.1 sent an application by registered post on 1.3.2005 to the Estate Officer, HUDA, Gurgaon for refund of the earnest money subsequently reminders were sent on 27.4.2005 and 17.5.2005. The respondent no.2 i.e., Estate Officer, Gurgaon (HUDA) vide his office letter memo No. 13221 dated 18.7.2005 intimated that the refund order No.U-57-032588 for Rs.51,030/- and refund cheque No.32627 has been encashed on 18.1.2005 in the Hongkong and Shanghai Banking Corporation Ltd., Greater Kailash-I, New Delhi.
The respondent no.1 had also got served a legal notice to the petitioner no.1 and respondent no.2 through his counsel on 9.7.2005 but yet till date of complaint the grievance of the respondent no.1 had not been redressed.
The respondent no.1 wrote a letter to Sr. Supdt. of Police, Sector-12, Faridabad on 25.7.2005 and requested the Police authorities to lodge FIR against the erring person and investigate the case.
The petitioners in their written statement before the District Consumer Disputes Redressal Forum, Faridabad (short, District Forum) took Preliminary Objections that :
Under Section 6 of The Indian Post Office Act, 1898, the post office is exempted from liability for loss, misdelivery, delay or damage to any postal article in course of transmission by post. The Section 6 of IPO Act, 1898 is reproduced as under:
Exemption from liability for loss, misdelivery, delay or damage : Section-6 exempts Post Office from any liability for loss misdelivery or delay of, or damage to any postal article in course of transmission by post, except as the liability may be undertaken by the Government in express terms. This section is equally applicable to the articles sent by Speed Post for which provisions have been made under Indian Post Office Rules, 1933 by inserting Rule No.66B. These rules were further amended by notification GSR 40 (E) dated 21.1.1999 which inserted the following conditions under condition no.(5) of Rule 66-B -In case of any delay of domestic speed post article beyond the norms determined by the Department of Posts from time to time, the compensation to be provided shall be equal to composite speed post charge paid. In the event of loss of speed post articles or loss of its contents or damage to the contents compensation shall be double the amount of composite speed post charges paid or Rs.1,000/- whichever is less.
However, the Government shall not incur any liability by reason 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 Government as hereinafter provided ; and no officer of the Post Office shall incur any liability by reason of any such loss, mis-delivery, delay or damage, unless he has caused the same fraudulently or by his willful act or default.
The respondent no.2 had not sent a registered letter but Speed Post article no.EE-907051664IN dated 21.12.2004 booked from Gurgaon and addressed to Shri Mahabir Prasad R/o H. No.569, Sector-19, Faridabad at present R/o H. No.37, Ward No.17, Panchham Mohalla, Charkhi Dadri, Bhiwani. The same was received for delivery on 22.12.2004 at Sector-16A, PO and was entrusted to postman, Shri Babu Ram for delivery on 22.12.2004 & 23.12.2004. Shri Babu Ram postman had doubts whether Shri Mahabir Prasad lived at the given address as Shri Mahabir Prasad did not meet him at the given address. Therefore, on 22.12.2004, the said postman did not deliver the article to Shri Manoj Kumar (other than the addressee) and returned it as undelivered to the concerned P.A. at Sector-16A, P.O. Faridabad.
Shri Manoj Kumar visited the Sector-16-A, P.O. Faridabad on 23.12.2004 for taking delivery of the SPP article but he had no authority letter of Shri Mahabir Prasad, therefore, the SPP article was not delivered to Shri Manoj Kumar on 23.12.2004, Shri Babu Ram postman went to the said address for delivery but Shri Manoj Kumar failed to show the authority letter of the addressee as well as produce any witness. The speed post article was not entrusted by Sector-16A, P.O., Faridabad P.A. to the postman for delivery on 24.12.2005 and thereafter as the same was misplaced from the custody of P.A. On receipt of complaint, the said case was enquired into through inspecting officer concerned.
The speed post article was lost in custody of the Dealing Assistant on 24.12.2004. The case was sent to SSPOs Gurgaon to pay the compensation to the sender.
Letters were written to SSPOs Gurgaon on 17.3.2005, 15.4.2005 and 17.6.2005 vide which they were requested to settle the case by sanctioning the admissible claim to the sender of the article.
SSPOs Gurgaon has also written to Administrator, HUDA, Gurgaon for completion of the claim application so that claim may be sanctioned.
On receipt of legal notice, the matter was examined and as per the finding SSPOs, Gurgaon was addressed to pay the compensation amount to the sender of the article and intimate the amount of compensation to be recovered from official at fault. In addition, disciplinary action was taken against the official at fault vide SSPOs Faridabad Memo No.CR/DOPG/SP/ Sector-16A dated 30.9.2005/1.10.2005.
District Forum vide their order dated 30.7.2012 came to the conclusion that ;
The argument of the counsel that the onus was on the complainant to show as to who got the cheque encashed from HSBC Bank is also untenable because where the speed post article containing the cheque was in custody of dealing assistant of speed post article, the onus was of the official of respondent no.1 to show as to how that cheque was misplaced and how it reached the person who got the cheque encashed. Since the complainant or his son-in-law Manoj Kumar never got possession of speed post article, how the onus can be shifted upon them to show as to how the cheque was encashed and who got it encashed from HSBC Bank.
Therefore, respondent remains liable for non-delivery of speed post article to the complainant and it is the result of fraud or atleast default of the dealing assistant of speed post article because of which it reached the wrong hands who got it encashed from HSBC Bank.
Respondent no.1 is, therefore, directed to pay the cheque amount of Rs.51,030/- (Rs. Fifty one thousand thirty only) to the complainant with interest @ 9% p.a. from the date of complaint i.e. 8.12.2006, till the date of actual payment and also to pay him Rs.5,000/- towards litigation expenses and mental harassment.
A copy of this order be sent to the parties concerned free of costs. File be consigned to the record room.
Aggrieved by the order of the District Forum, petitioners filed an appeal before the State Commission. Vide their order dated 3.1.2013, State Commission observed that ;
In support of his arguments, learned counsel for the appellants-opposite parties referred to Section 6 read with Rule 66-B of the Post Office Act, 1898 which is reproduced as under :-
The Govt. shall not incur any liability by reasons of loss, misdelivery or delay of or damage to except in so far as such liability may in express terms the undertaken by the Central Govt. as hereinafter provided ; and no officer of the Post Office shall incur any liability by reasons of any such loss, misdelivery, delay or damage, unless he has caused the same fraudulently or by his willful act or default.
We do not find force in the contention raised by the learned counsel for the appellants-opposite parties because from the act and conduct of the opposite parties it is fully established that they were deficient and negligent in non-delivering of the postal article to the complainant. If nobody was available to receive the postal article the opposite parties were bound to send the same to its sender but they failed to perform their duty. In our view the act of the appellants-opposite parties for not delivering the speed post article at its proper destination, is willful act or default on the part of the officials of the appellants-opposite parties. It has to be kept in mind that in view of Section 106 of the Indian Evidence Act, 1872 the burden of proving deliberation about the delivery of the postal article was upon the opposite parties because after handing over the speed post envelope to the opposite party no.1 by the opposite party no.2, the opposite parties are the custodian of the same and by conducting an enquiry about the loss/missing of the postal article, the opposite parties could have submit their explanation but they failed to do so.
It is evident on record that the appellants-opposite parties are deficient for the loss of speed post envelope which was containing cheque of Rs.51,030/-.
Merely by stating that the liability of the opposite parties is limited to pay compensation as admissible under the rules for loss of article or Rs.1,000/- whichever is less, is not genuine excuse as the opposite parties have tried to absolve themselves from their liability by taking shelter of Section 6 of the Indian Post Office Act, 1989 and the provisions of the Indian Post Office Rules 1933 and Rule 66B of the Post Office Act and as such the deficiency of service of the opposite parties in the instant case is not to be over sighted.
As a sequel to our aforesaid discussion, the instant case falls within the mischief of willful act or default on the part of the officials of appellants-opposite parties and as such the impugned order passed by the District Consumer Forum does require any interference.
Hence, this appeal is dismissed being devoid of any merit.
Hence the revision petition.
Revision petition has been filed with delay of 16 days. For the reasons mentioned in the application for condonation of delay, the delay is condoned.
We have heard the learned counsel for the petitioner and gone through the record carefully.
The grounds as given in the revision petition are that ;
n On the face of the record, it is proved that cheque in dispute sent by the respondent no.2 to respondent no.1 through Speed Post/Registered Post has been encashed by some Mahabir Prasad R/o Gurgaon from HSBC Bank and a confirmation from the said Bank has been obtained by the petitioner attached with the present petition but surprisingly, respondent no.1 while filing the complaint before the District Forum did not array the HSBC Bank or a man known as Mahabir Prasad R/o Gurgaon in place of respondent no.1, in the absence of the array of HSBC Bank and the same person Mahabir Prasad R/o Gurgaon, the real controversy between the parties to the litigation could not have ben adjudicated upon and this important fact and plea has been ignored by the Courts below which is very much essential for imparting the justice to the parties.
n In view of the aforesaid submissions, the complaint of the complainant/respondent no.1 was not maintainable and the District Forum ought to have directed the respondent no.1 to array the HSBC Bank and another same person Mahabir Prasad R/o Gurgaon as respondent, neither the respondent no.1 nor the District Forum tried to do so, which is legally fatal itself.
n One important fact is established that the amount of the cheque in question has not been fraudulently or otherwise, used by the official of the petitioner no.1 or by the petitioner no.2, whereas, there are the possibilities that the cheque in question may have been encashed by the person of the same name respondent no.1 in collusion with the staff of the said Bank.
n Not only the above, before filing the complaint before the District Forum, it was also required for the respondent no.1 to get the verification from the respondent no.2, i.e., Haryana Urban Development Authority (HUDA) whether the amount in question has been got encashed of the cheque in question or not, this aspect was also not adhered to which clearly shows that gross negligence and non-adherence to the possible and expected measures by the respondent no.1, had the respondent no.1 taken this precaution and had done this exercise to this effect, then there were the firm possibility that the Bank referred to above and the person in the name of the respondent no.1 would have returned the amount in question to the respondent no.1 on being done so by the respondent no.1. Thus, both the impugned orders of Courts below are liable to be set aside.
The District Forum correctly came to the following conclusion that there is no dispute that a speed post article No.EE-907051664IN dated 22.12.2004 addressed to Mahabir Prasad, respondent no.1 was entrusted to the petitioner no.2, Babu Ram Postman (respondent no.3 before the District Forum) for delivery. But as the addressee did not live at the aforesaid address and no authority letter from the addressee was produced for taking delivery, Babu Ram, petitioner no.2 returned that letter to the dealing Assistant of Speed Post Article. It is clear from the letter dated 2.9.2005 written to the respondent no.1s son-in-law Manoj Kumar by Asst. Director General, Post Offices.
It was further mentioned in the letter that the dealing Assistant of Speed Post Article is responsible for the loss of the said articles and the Manager, SPC has been addressed to pay the compensation to the sender and recover the amount of compensation from the official at fault in addition to disciplinary action. So, it is clear from the letter of an officer of the Dept. of Posts of Government of India that the speed post article containing the cheque of Rs.51,030/- in favour of the respondent no.1 sent by respondent no.2 was not delivered to respondent no.1 or his authorized representative Manoj Kumar but was misplaced by the dealing Asst. of Speed Post Centre or was got encashed by him from HSBC Bank, Greater Kailash I, New Delhi. Petitioner no.1 is, therefore, responsible for the loss caused to the respondent no.1 but there is no liability of petitioner no.2 Babu Ram because he had admittedly returned the speed post article to the dealing Assistant of Speed Post Article on the evening of 23rd December, 2005.
When respondent no.2 had already issued the cheque in favour of the respondent no.1 and that already stands encashed on 18.1.2005 in HSBC Bank, New Delhi, either due to the fault or as a result a conspiracy of official of petitioner no.1, respondent no.2 is also not responsible for payment of any amount to the respondent no.1.
The petitioner at this stage based on the advice of Shri Namit Kumar, Advocate dated 5.2.2013, with the view to prove that the person who has got the cheque encashed is the complainant, have obtained a statement dated 31.1.2005 from HSBC Bank, JMD, Gurgaon which indicates that a deposit of Rs.51,030/- vide cheque no.032627 was made in the account of Mahabir Prasad, H.No.16, Gali no.4, Arjun Nagar, Gurgaon. With this statement they have sought to prove that the cheque in question had been encashed by Shri Mahabir Prasad, respondent no.1 himself. To explain the same, they had pleaded before the District Forum that the article from the Post Office with the conspiracy of the official of respondent no.1 which in this case being the Sr.Superintendent of Post Offices, Faridabad had got the cheque encashed from HSBC Bank.
It is noted that this plea was not raised in their reply before the District Forum. On the contrary, they had admitted in their reply that the SPP article had not been delivered and had been misplaced from the custody of PA.
On receipt of complaint, the said case was enquired through inspecting officer concerned as the speed post article was lost in custody of the Dealing Assistant. It is indeed strange that after that they are taking a contrary stand that SPP article has been delivered to Shri Mahabir Prasad or as per their case actually received the article from the post office with conspiracy of the officials of respondent no.1 and had got encashed the cheque without giving any evidence to support this stand.
The Bank statement dated 31.1.2005 was available in December, 2006, when the complaint was instituted with the District Forum and could have been introduced in their reply to the District Forum. It was neither introduced before the District Forum nor the State Commission.
It has been relied upon for the revision petition without even making an application for filing of additional documents. As such we are of the opinion that this document cannot be introduced in this manner to adduce the main ground for their revision petition.
Further, there is no evidence that the statement pertains to the account of respondent no.1 as the address of Shri Mahabir Prasad given in the Bank statement dated 31.1.2005 is not the same as that given in the complaint dated 8.12.2006. In the complaint, Shri Mahabir Prasad has been shown as at present - resident of House No.37, Ward No.17, Pachham Mohalla, Charkhi Dadri, Bhiwani and also his corresponding address has been shown House No.569, Sector-19, Faridabad and not the address given in the Bank statement which is H.No.16, Gali no.4, Arjun Nagar, Gurgaon.
We also find that the respondent no.1 had continued to agitate his case with the Estate Officer, HUDA after 18.1.2005, the alleged date of encashment of the cheque, right upto 17.5.2005. It is the Estate Officer, HUDA who vide his letter dated 18.7.2005 had intimated that the refund order No.U-57-032588 for Rs.51,030/- and refund cheque no.32627 has been encashed on 18.1.2005 in the Hongkong and Shanghai Banking Corporation Ltd., Greater Kailash-I, New Delhi.
Inspite of the fact that this was mentioned in the complaint that petitioner took no action to verify whether indeed the cheque has been encashed and if so by whom at that stage. Respondent no.1 has also got served a legal notice upon HUDA and the Bank through its counsel on 9.7.2005 and lodged a complaint with Sr. Supdt. of Police on 25.7.2005 requesting the Police Authority to lodged FIR against the erring person and investigate the case. These actions of respondent no.1 do not support the stand of the petitioner that respondent no.1 had already encashed the cheque and deposited the amount in his account on 18.1.2005.
24. In view of the above facts, no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under Section 21 (b) of Act. Since, two Fora below have given detailed and reasoned orders which does not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity. Therefore, present petition is hereby, dismissed with cost of Rs.10,000/- (Rupees Ten Thousand only).
25. Petitioners are directed to pay the cost of Rs.5,000/- by way of demand draft in the name of respondent no.1 and remaining cost of Rs.5,000/- by way of demand draft in the name of Consumer Legal Aid Account of this Commission within four weeks from today. In case, petitioners fail to deposit the said cost within the prescribed period, then they shall also be liable to pay interest @ 9% p.a., till realization.
27. List on 23.8.2013 for compliance.
....J (V.B. GUPTA) PRESIDING MEMBER ......
(REKHA GUPTA) MEMBER Sonia/