State Consumer Disputes Redressal Commission
Siddharth Construction vs India Post H.O. & Anr. on 12 October, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Complaint Case No.CC/2017/03
Instituted on : 04.02.2017
Siddharth Construction,
Through Mr. Sidhartha Chandrakar,
S/o Shri Nand Kumar Chandrakar,
R/o : Vidyut Nagar,
Durg (C.G.) ... Complainant.
Vs.
1. India Post, H.O.
National Speed Post Center,
Durg (Chhattisgarh) 491001
2. The Chairman,
Office of Nagar Panchayat,
Devkar, District Bemetara (Chhattisgarh) ... Opposite Parties
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES:
Shri Shrijan Shukla, Advocate for the complainant.
Shri Abhinav Agrawal, for the O.P. No.1.
Shri Saurabh Sharma, Advocate for the O.P. No.2.
ORDER
Dated : 12/October/2017 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. The complainant filed this consumer complaint under Section 17 of the Consumer Protection Act, 1986 against the OPs seeking following reliefs :-
1. To direct the O.P. No.1 and O.P. No.2, to pay Rs.25,00,000/-
(Rupees Twenty Five Lakhs) to the complainant for the predictable loss against the tender.
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2. To direct the O.P. No.1 & O.P. No.2 for the payment of interest @ 18% per annum on the entire amount from the date of the opening of the bid.
3. To direct O.P. No.1 & O.P. No.2 to pay Rs.5,00,000/- (Rupees Five Lakhs) towards compensation for mental agony and irresponsible attitude and high handedness of the OPs may also be allowed in the interest of justice.
4. To direct the OPs to pay a sum of Rs.2,00,000/- (Rupees Two Lakhs) towards expenses in connection with the litigation.
5. Any other relief which the Hon'ble Commission may feel deem fit and proper under the circumstances.
2. Briefly stated the facts of the complaint of the complainant are that the O.P. No.1 is the Government entity which is engaged in the function of post distribution, whereas the O.P. No.2 is the Government entity established under the 74th Amendment of the Constitution of India relating to urban local Governments and is established for performing the welfare work for the public at large. The O.P. No.2 had floated the public offer in the form of a tender notice No.22/Na.Pa/Lo.Ni.VI/2015-2016 dated 08.04.2016, for the extension of the water distribution scheme under the Nagar Panchayat, Devkar. The eligibility criteria for taking part in the tender process was also specified in the NIT document by stating that the persons / firms falling under the "D" class and the persons / firms registered under the // 3 // unified registration system, E-Registration were only eligible. That, since the fully filled tender forms reflecting the eligibility criteria's was called upon for the above said work from the eligible entities and the complainant fulfilling all the criteria's and requirements, as mentioned in the tender offered, he sent the fully filled form to O.P. No.2, which was supposed to reach the office of O.P. No.2 by 29.04.2016, 3.30 P.M. and it is also important to mention that the tender form was distributed by the O.P. No.2 till 25.04.2016, 5 P.M. Further for taking part in this tender process the security deposited asked by the O.P. No.2 was Rs.63,000/- which needs to be submitted by the participating entities in the form of a Demand Draft and the same was asked to be presented directly to the office of the O.P. The tender was supposed to be opened on 29.04.2016 itself at 5.00 P.M. whereas the complainant fulfilling all the mentioned liability criteria for filling the mentioned tender, has made the envelop of the required documents containing the proofs of the eligibility of falling in the Class "D"" and registered under the unified registration system, E-Registration in one envelop. In the second envelop he has kept the DD of the security deposit amounting to Rs.63,000/- and in the third envelop he has kept the financial bid as required for fulfilling the tender procedure. The complainant after completing all the formalities, the envelop was posted through O.P. No.1 via speed post to the office of O.P. No.2 on 27.04.2016 with an assurance that the dispatched article will be delivered to O.P. No.2 within time. The dispatched article also reached to Bemetara on 28.04.2016 and the article was attempted to be // 4 // delivered on 28.04.2016 at 15.32 hours, but the exercise was futile, as the article was returned with a tip of "refused to take" (as mentioned on the envelop). That thereafter as per the track record (Annexure C-
3), the article was sent back to ICH, Durg on 29.04.2016. Thereafter, the article was sent to Dhamdha S.O. on 30.04.2016, then it went to Devkar B.O. on 03.05.2016 and the delivery was again attempted but the same was returned with a remark of "refused". Then the article again was sent to ICH, Durg and then to Durg H.O. Subsequently, by a lot of rotations finally the article booked by the complainant came back to him on 18.05.2016. When the complainant enquired about the rate/finance bid of entity which received the contract under the tender, he was surprised to know the rate, because the quotation which the complainant had quoted is extremely less than the quote of the person who has been awarded the work. The complainant was confident enough about getting the tender work for performance, because he had quoted the rate after considering all the factors involved in it and was certain for the award of tender work to him. But, due to this deficiency in service on the part of O.P. No.1, by not delivering the booked article (tender document) to the prescribed destination even after the attempt on time, the complainant failed to grab the tendered work and had to suffer the financial as well as mental loss. The negligence has also been done on the part of the O.P. No.2 along with O.P. No.1, by not accepting the tender document. , when the same was attempted to be delivered to O.P.No.2. Hence the O.P. No.2 is also liable for giving the compensation against the loss // 5 // which the complainant has suffered. The complainant send a legal notice dated 28.06.2016, through an Advocate to O.P. No.1 and O.P. No.2 directing them to take the cognizance of the matter and to compensate the complainant to the tune of Rs.25,00,000/- against the expected profit cost of the tender and also to compensate to the tune of Rs.5,00,000/- for the mental agony which the complainant has suffered to the negligent services of the O.P. No.1 and O.P. No.2 Hence the instant complaint.
3. The O.P. No.1 has filed its written statement and averred that on 27.04.2016, the complainant sent an envelope through speed post through the office of O.P. No.1 to O.P. No.2. The O.P. No.1 attempted to deliver the said post to the O.P. No.2 on 28.04.2016, but the O.P. No.2 refused to take the same, therefore it was returned to Head Post Office, Durg from Sub Post Office, Bemetara. The complainant himself given incomplete address of the O.P. No.2 in the envelope and he only mentioned address C.M.O. Nagar Panchayat, Devkar, Bemetara, whereas the actual address of the O.P. No.2 is C.M.O. Nagar Panchayat, Devkar, P.O. Dhamdha, District Bemetara (C.G.). The O.P. No.1 did not aware of the document which was kept under the envelope. The post was returned to Dhamdha Sub Post Office from Durg Post Office on 30.04.2016 and again the O.P. No.1 attempted to deliver the envelope in the office of the O.P. No.2 on 03.05.2016, but the O.P. No.2 again refused to take the said post, therefore, the O.P. No.1 did not commit any deficiency in service. The // 6 // complaint is not maintainable under Section 6 of the Indian Post Office Act. The complaint is liable to be dismissed against the O.P. No.1.
4. The O.P. No.2 filed its written statement and denied the allegations made by the complainant in the complaint. The O.P. No.2 averred that the complainant had not submitted tender form on 29.04.2016 till 3.30 P.M. whereas the time was fixed for submitting tender form till 3.30 P.M. of 29.04.2016. The complainant utterly failed to submit his tender form within prescribed time. Proforma of tender was to be obtained from the office of O.P. No.2 till 25.04.2016 at 5.00 P.M and all proceeding were to be done by the office of Chief Municipal Officer, Devkar and not by President, Nagar Panchayat, Devkar. The tender was opened at 4.30 P.M. on 29.04.2016. If O.P. No.2 would have refused to accept the envelope, then it would have been mentioned "refused", but in the envelope it is mentioned "**ysus ls badkj** which shows that the document is fabricated. The complainant filed the instant complaint on frivolous and false ground, therefore, the same is liable to be dismissed against the O.P. No.2.
5. The complainant has filed document. Annexure C/1 is NIT document dated 08.04.2016, Annexure C/2 is copy of the envelop send by the complainant, Annexure C/3 is copy of the track record of the booked article, Annexure C/4 is copy of legal notice dated 28.06.2016, Annexure C/5 is copy of letter of O.P. No.1 dated 14.07.2016.
6. The O.P. No.1 has filed documents. The documents are classified list of the Post Offices under Durg Postal Division, // 7 // information regarding distribution of the post sent by the complainant.
7. The O.P. No.2 has filed copy of minutes of the Tender Committee held on 03.05.2016, letter dated 07.09.2016 sent by , Chief Executive Officer, Nagar Panchayat, Devkar, District Bemetara (C.G.) to Special Secretary, Nagriya Prasashan Evam Vikas Vibhag, copy of minutes of the Tender Committee held on 16.08.2016.
8. Shri Shrijan Shukla, learned counsel appearing for the complainant has argued that the O.P. No.2 had floated the public offer in the form of a tender Notice No.22/Na.Pa/Lo.Ni.Vi/2015-2016 dated 08.04.2016, for the extension of the water distribution scheme under the Nagar Panchayat, Devkar. The eligibility criteria for taking part in the tender process was also specified in the NIT document. The tender form was supposed to reach the office of the O.P. No.2 till 29.04.2016, 3.30 P.M. The tender form was distributed by the O.P. No.2 till 25.04.2016, 5.00 P.M. The complainant was eligible to submit the tender and he sent tender form in envelope to the O.P. No.2 through O.P. No.1 via Speed Post on 27.04.2016 with an assurance that the dispatched article will be delivered to O.P. No.2 on time. As per the tract record, the article was sent back to ICH, Durg on 29.04.2016. Thereafter, the article was sent to Dhamdha S.O. on 30.04.2016, then it went to Devkar B.O. on 03.05.2016 and the delivery was again attempted, but the same was returned with a remark of "refused". Then the article was again sent to ICH, Durg and then to Durg H.O. It // 8 // was not delivered to the O.P. No.2. Therefore, the complainant could not take part in the tender proceedings and the complainant suffered financial loss and mental agony. The OPs are vicariously liable to compensate the complainant. The complainant is entitled to get the reliefs, as prayed by him in the relief clause of the complaint.
9. Shri Abhinav Agrawal, learned counsel appearing for the O.P.No.1 has argued that on 27.04.2016, the complainant sent an envelope through speed post through the office of O.P. No.1 to O.P. No.2. The O.P. No. attempted to deliver the said post to the O.P. No.2 on 28.04.2016, but the O.P. No.2 refused to take the same, therefore it was returned to Head Post Office, Durg from Sub Post Office, Bemetara. The complainant himself mentioned incomplete address of the O.P. No.2 in the envelope and he only mentioned address C.M.O. Nagar Panchayat, Devkar, Bemetara, whereas the actual address of the O.P. No.2 is C.M.O. Nagar Panchayat, Devkar, P.O. Dhamdha, District Bemetara (C.G.). The O.P. No.1 did not aware of the document which was kept under the envelope. The post was returned to Dhamdha Sub Post Office from Durg Post Office on 30.04.2016 and again the O.P. No.1 attempted to deliver the envelope in the office of the O.P. No.2 on 03.05.2016, but the O.P. No.2 again refused to take the said post, therefore, the O.P. No.1 did not commit any deficiency in service. The complaint is not maintainable under Section 6 of the Indian Post Office Act. The complaint is liable to be dismissed against the O.P. No.1.
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10. Shri Saurabh Sharma, learned counsel appearing for the O.P. No.2 has argued that the complainant had not submitted tender form on 29.04.2016 till 3.30 P.M. whereas the time was fixed for submitting tender form till 3.30 P.M. The complainant utterly failed to submit his tender form within prescribed time. Proforma of tender was to be obtained from the office of O.P. No.2 till 25.04.2016 at 5.00 P.M and all proceeding were to be done by the office of C.M.O., Devkar and not by President, Nagar Panchayat, Devkar. The tender was opened at 4.30 P.M. on 29.04.2016. If O.P. No.2 would have refused to accept the envelope, then it would have been mentioned "refused", but in the envelope it is mentioned "**ysus ls badkj**, which shows that the document is fabricated The complainant filed the instant complaint on frivolous and false ground, therefore, the same is liable to be dismissed against the O.P. No.2.
11. We have heard learned counsel appearing for both the parties and have also perused the documents filed by them in the complaint case.
12. It is admitted fact that the O.P. No.2 offered tender notice No.22/Na.Pa/Lo.Ni.Vi/2015-2016 for extension of the water distribution scheme under the Nagar Panchayat Devkar. The complainant has filed document Annexure C-1, which is Tender Offer Notice dated 08.04.2016 by Office of Nagar Panchayat, Devkar, District Bemetara. Looking to the above document and admission of the O.P. No.2, it is established that the O.P. No.2 floated tender offer.
// 10 // According to the complainant, he sent his tender form in envelope by speed post to O.P. No.2 through O.P. No.1, but the same was not delivered by the O.P. No.1 to the O.P. No.2, therefore, the complainant could not participate in the tender proceedings. On the contrary as against the allegation made by the complainant, the O.P. No.1 has specifically pleaded that the O.P. No.1 attempted to deliver the envelope in the office of the O.P. No.2 but the O.P. No.2 refused to take the same. The O.P. No.1 also pleaded that the incomplete address of the O.P. No.2 was mentioned in the envelope, therefore, it was returned to the Head Post Office, Durg on 28.04.2016, which was received by Head Post Office, Durg on 29.04.2016 and the same was sent to Dhamdha Post Office on 30.04.2016. On 03.05.2016. The O.P. No.1 again attempted to deliver the envelope in the office of the O.p. No.2 but again the O.P. No.2 refused to take the same, therefore, the same was returned to the complainant on 18.05.2016.
13. The complainant filed photocopy of envelope sent by the complainant which is marked as Annexure C/2, in which address of the addressee is mentioned C.M.O. Nagar Panchayat, Bemetara (C.G.). In the envelope only letter "D" is visible and prior to it, C.M.O. Nagar Panchayat, was typed and thereafter Devkar Dhamdha was handwritten. It appears that when the envelope was returned to the complainant, then Devkar Dhamdha, was added in envelope in handwriting. The complainant also filed document Annexure C-3, which is copy of track record of the booked article, in which it is // 11 // mentioned that "on 28.04.2016 at 15.32.00 Delivery Attempted Missent". It is further mentioned that "On 03.05.2016 Delivery attempted Refused." In document Annexure C-2 it is specifically mentioned that "**ysus ls badkj**. It appears that the O.P. No.1 attempted to deliver the envelope in the office of O.P. No.2, but the office of the O.P. No.2 refused to take the same.
14. The O.P. No.2 pleaded that if O.P. No.2 would have refused to take the envelope then the O.P. No.2 would have mentioned "refused", but in the envelope it is mentioned "**ysus ls badkj**. The meaning of words "refused to accept" in Hindi is "*ysus ls badkj**. In envelope, the words "*ysus ls badkj** has been mentioned in Hindi. It means that the O.P. No.2 refused to accept the envelope. If the address of the addressee was not given properly, then addressee had a right to refuse or accept the said postal article . In the instant case, the O.P. No.2 refused to take the envelope, which shows that the O.P. No.1 attempted to deliver the envelope to O.P. No.2. If the O.P. No.2 refused to take the envelope, then it cannot be held that the O.P. No.1 has committed any deficiency in service.
15. So far as the O.P. No.2 is concerned, looking to the documents i.e. Tender Offer Notice and Minutes of Meeting, it is established that the matter is relating to tender for contract work.
16. In Lalit Vs. Dr. Sunil Jadhv & Anr. II (2014) CPJ 391 (NC), Hon'ble National Commission has observed that "Tender Application // 12 // moved by petitioner is a dispute between two independent persons and it cannot be decided by District Forums, it can only be decided by Civil Court."
17. In the instant case, the O.P. No.2 offered tender Notice No.22/Na.Pa/Lo.Ni.Vi/2015-2016 dated 08.04.2016 for the extension of the water distribution scheme under the Nagar Panchayat, Devkar. According to the complainant he sent his tender form through post. It shows that the complainant had not gave any consideration to the O.P. No.2 and the complainant has not hired any service of the O.P. No.2. The O.P. No.2 did not provide any services to the complainant, therefore, the complainant is not consumer of the O.P. No.2. The tender matter does not fall within consumer dispute. The matter between the complainant and O.P. No.2 relates to contract matter, therefore, the Consumer Fora has no jurisdiction to take cognizance in the matter, hence the complainant is not consumer under Section 2(1)(d) of the Consumer Protection Act, 1986 and the complaint is not maintainable.
18. Therefore, the complaint filed by the complainant against the OPs, is liable to be dismissed, hence the same is dismissed. Parties shall bear their own cost.
(Justice R.S. Sharma) (Narendra Gupta)
President Member
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