State Consumer Disputes Redressal Commission
Senior Superintendent Of Posts vs Bhagwan Singh Thakur on 30 May, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2017/105
Instituted on : 10.03.2017
Senior Superintendent of Posts,
Office of Senior Superintendent of Posts,
Raipur (C.G.) ... Appellant/O.P.
Vs.
Bhagwan Singh Thakur S/o Shri Chamruram,
Aged 53 years,
R/o : Near house of Gendlal Patel,
Ramsagarpara Ward No.3, Gunderdehi,
Teh. Gunderdehi, Teh. & Dist. Durg (C.G.) ....Respondent/Complainant
PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES :
Shri Yogendra Singh Rajput, Advocate for the appellant (O.P.).
Shri K.K. Agrawal, Advocate for the respondent (complainant).
ORDER
DATED : 30/05/2017 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against the order dated 20.12.2016, passed by District Consumer Disputes Redressal Forum, Durg (C.G.) (henceforth "District Forum") in Complaint Case No.C.C./2016/255. By the impugned order, learned District Forum, has partly allowed the complaint of the complainant and directed that :-
(1) The O.P. will provide the certified copy of the acknowledgement speed post within a week, to the complainant.
// 2 // (2) The O.P. will pay a sum of Rs.10,000/- (Rupees Ten Thousand) towards compensation for mental agony to the complainant. (3) The O.P. will pay a sum of Rs.5,000/- (Rupees Five Thousand) towards cost of litigation to the complainant.
2. Briefly stated, the facts of the complaint of the complainant are that on 16.06.2014, the complainant sent a letter to the address of Nand Kumar Rai, Patwari, Parsuli, Tehsil Gariyaband through speed post from Gunderdehi Post Office and the and the Post Office gave receipt regarding booking of the Speed Post. The complainant moved an application under Right to Information Act for obtaining certified copy of the acknowledgement, which has to be submitted before Information Commission, Raipur, but till date the O.P. did not provide information regarding the acknowledgement. The O.P. committed deficiency in service and negligence, due to which the complainant suffered problems. The person, to whom letter was sent is making false pretext due to which the complainant is suffering problem and work could not be completed. The person to whom letter was sent, was escaping from his liability. The O.P. did not give acknowledgement regarding delivery of letter to Nand Kumar Rai through speed post, therefore, the complainant sent notice to the O.P. as well as Post Master, Parsuli, Tehsil and District Gariyaband, but till date the O.P. did not give the certified copy of the acknowledgement The complainant sent a letter to the O.P. and asked for giving all information // 3 // regarding the Speed Post Article No.948371915, sender Bhagwan Singh Thakur. The complainant sought information under Right to Information Act from Nand Kumar Rai, Patwari in respect of the encroachment done by Budhram and Dheeraj in Government land. The Patwari appeared before S.D.O. (Revenue) Gariyaband and by submitting written report told that the letter sent by the complainant through speed post has not been received by him, therefore, the complainant demanded acknowledgement in respect of speed post, but the O.P. did not give certified copy of acknowledgement. The O.P. committed deficiency in service. Hence the complainant has filed instant complaint and prayed for granting relief as mentioned in relief clause of the complaint.
3. The O.P. filed his written statement and averred that the complainant sent a letter on 16.06.2014 from Gunderdehi Post Office through speed post, but he did not attach acknowledgement, therefore, no separate information regarding delivery of the letter was sent to the complainant. Actually, on 19.06.2014, the letter sent by the complainant i.e. Article No.EC 948371915 IN was delivered to Nand Kumar Rai, Village Parsuli, Police Station & Tehsil Gariyaband. Actually the complainant did not attach acknowledgement with the letter, therefore, acknowledgement was not returned but the above letter has been delivered to addressee Nandkumar Rai. The same can be seen by uploading in the website of Postal Department i.e. indiapost.gov.in. The O.P. delivered the post sent by the complainant within prescribed time, therefore, the O.P. did not // 4 // commit any deficiency in service. The complainant sent notice through Shri Kishore Agrawal, Advocate and the O.P. sent information in respect of delivery of letter on 17.12.2015, 23.02.2015, and 05.04.2016 along with documents. The O.P. placed reliance on Section 6 of Indian Post Office Act. The complainant did not attach acknowledgement with speed post article and has deliberately filed instant complaint before the District Forum, which is not maintainable and is liable to be dismissed.
4. The complainant has filed documents. Annexure A-1 is letter dated 16.06.2014 sent by the complainant to Shri Nand Kumar Rai, Patwari and Public Information Officer, Gariyaband, District Gariyaband, Annexure A- 2 is letter dated 16.06.2014 sent by the complainant to Shri Nand Kumar Rai, Patwari and Public Information Officer, Gariyaband, District Gariyaband, Annexure A-3 is letter dated 07.08.2015 sent by the complainant to Shri Sudamaram Vaishnav, Incharge Post Master, Post Office Parsuli, Annexure A-4 is letter dated 09.09.2015 sent by the complainant to the O.P., Annexure A-5 notice dated 26.11.2015 sent by Shri Kishor Kumar Agrawal, Advocate to the O.P., Annexure A-6 is letter dated 17.12.2015 sent by Shri K.K. Agrawal, Advocate to the O.P., Annexure A-7 is letter dated 10.12.2015 sent by the O.P. to Shri Kishor Kumar Agrawal, Advocate, Annexure A-8 is Notice dated 31.12.2015 issued by Chhattisgarh State Information Commission, Raipur to Shri Nandkumar Rai, Annexure A-9 is letter dated 20.03.2014 sent by S.D.O. // 5 // Cum First Appellate Officer, Annexure A-10 is letter dated16.09.2015 sent by the complainant to Tehsildar, Gariyaband.
5. The O.P. has not filed any documents.
6. Learned District Forum, after having considered the material placed before it, has partly allowed the complaint of the complainant and directed the O.P. to pay amounts to the complainant, as mentioned in para 1 of this order.
7. Shri Yogendra Singh Rajput, learned counsel appearing for the appellant (O.P.) has argued that learned counsel for the appellant (O.P.) has argued that the respondent (complainant) sent a letter on 16.06.2014 from Gunderdehi Post Office to Nand Kumar Rai, Patwari through Speed Post, but the respondent (complainant) did not attach acknowledgement with the letter, therefore, no separate information regarding delivery of the letter through speed post was sent to the respondent (complainant). The letter sent by the respondent (complainant) through Speed Post was duly delivered to the addressee Nand Kumar Rai, Patwari of Village Parsuli, Tahsil and District Gariyaband (C.G.). The respondent (complainant) had not attached acknowledgement with the letter, therefore, acknowledgement could not be returned to the respondent (complainant), but the letter was duly delivered to the addressee Nand Kumar Rai, Patwari. The same can been seen by uploading in the website of Postal Department i.e. indiapost.gov.in. The respondent (complainant) // 6 // asked for the acknowledgement regarding the delivery of the letter through speed post and the appellant (O.P.) gave information regarding delivery of the letter vide letter dated 17.12.2015, 23.2.2016 and 05.04.2016, therefore, the appellant (O.P.) did not commit any deficiency in service. The complaint of the respondent (complainant is not maintainable under provisions of Section 6 of Indian Post Office Act. The impugned order passed by the District Forum, is erroneous and is liable to be set aside. The appeal of the appellant (O.P.) be allowed.
8. Shri K.K. Agrawal, learned counsel appearing for the respondent (complainant) has also filed written arguments and argued that the respondent (complainant) had sent a letter to Nand Kumar Rai, Patwari of Village Parsuli, Tahsil and District Gariyaband on 16.06.2014 through Speed Post from Gunderdehi Post Office and the Post Office gave receipt regarding booking of the Speed Post. The said letter was not delivered to Nand Kumar Rai , Patwari, then the respondent (complainant) moved an application before the appellant (O.P.) under Right To Information Act, for obtaining certified copy of the acknowledgement, which has to be submitted before Information Commissioner, Raipur, but till date, the appellant (O.P.) did not provide such information, which comes in the category of deficiency in service. The person, to whom letter was sent by the respondent (complainant) was escaping from his liability, therefore, the respondent (complainant) suffered a lot or problems, for want of acknowledgement. The impugned order passed by the District Forum, is // 7 // just and proper and does not suffer from any infirmity irregularity or illegality, therefore, the appeal filed by the appellant (O.P.) is liable to be dismissed.
9. We have heard learned counsel appearing for both the parties and have also perused the record of the District Forum, as well as impugned order.
10. According to the respondent (complainant) he sent a letter to Nand Kumar Rai, Patwari of Village Parsui, Tahsil Gariyaband (C.G.) on 16.06.2014 through Speed Post from Post Office Gunderdehi. The acknowledgement regarding delivery of speed post was not returned to the respondent (complainant). The respondent (complainant) moved an application before appellant (O.P.) under Right To Information Act, seeking information, but such information was not provided by the appellant (O.P.) to the respondent (complainant). If the respondent (complainant) filed an application under Right to Information Act before the appellant (O.P.) and appellant (O.P.) did not provide information sought by the respondent (complainant), then the respondent (complainant) had only remedy to file appeal under Section 19 of Right To Information Act, 2005 before Appellate Authority, but the respondent (complainant) did not file any appeal against the appellant (O.P.) regarding not providing information to the respondent (complainant). As the respondent (complainant) sought information from the appellant (O.P.) // 8 // under Right To Information Act, and if such information had not been given by the appellant (O.P.), then only remedy available to the respondent (complainant) is to file appeal against the appellant (O.P.) before Appellate Authority. The District Forum has no jurisdiction to take cognizance in the matter.
11. In S. Dorai Raj vs. Divisional Personnel Officer & Nodal Public Information Officer, Southern Railway, Madurai & Anr. I (2014) CPJ 444 (NC), Hon'ble National Commission has observed that "RTI Act is a code in itself. It provides for remedies available under this Act to person who has been denied any information. Remedy available under RTI Act. Complaint not maintainable."
12. In Sanjay Kumr Mishra Vs. PIO, State Information Commission (SIC) & Anr. I (2015) CPJ 335 (NC), Hon'ble National Commission has observed thus :-
"12. However, mere payment of consideration in the form of fee and additional fee coupled with supply of information being seemingly covered within the definition of service, is not conclusive of the issue involved. The legislative intent behind enactment of the RTI Act, 2005, which is a later Act is equally important As observed by the Hon'ble Supreme Court in Star Enterprises & Ors. v. City & Industrial Development Corporation of Mahrarashtra Ltd., 1990 (3) SCC 280, the people of this country have a right to know every public act, everything that is done in a public way by their public functionaries and the right to know is derived from the concept of freedom of speech. It was to give a meaningful meaning to the said right that the Legislature in its wisdom decided to enact the RTI // 9 // Act which, besides granting right to access public information also creates a comprehensive mechanism for providing the desired information to the information seeker."
15. It would thus be seen that RTI Act is a complete code in itself, which provides an adequate and effective remedy to the person aggrieved from any decision / inaction / act / omission or misconduct of a CPIO / PIO. Not only does the Act provides for two appeals, it also provides for a complaint to the Central Information Commission or the State Information Commission, as the case may be, in a case where the CPIO/PIO does not give his decision, on the application, within the prescribed time. If a person still aggrieved, he can approach the concerned High Court by way of writ petition. In fact several writ petitions are pending in the High Courts against the orders passed by the Central Information Commission.
25. For the reasons stated hereinabove, we hold that (i) the person seeking information under the provisions of RTI Act cannot be said to be a consumer vis-à-vis the Public Authority concerned or CPIO / PIO nominated by it and (ii) the jurisdiction of the Consumer Fora to intervene in the matters arising out of the provisions of the RTI Act is barred by necessary implication as also under the provisions of Section 23 of the said Act. Consequently no complaint by a person alleging deficiency in the services rendered by CPIO/PIO is maintainable before a Consumer Forum."
13. In Public Information Officer, Urban Improvement Trust, Ajmer Vs. Tarun Agrawal, II (2014) CPJ 167 (NC), Hon'ble National Commission has observed that "It cannot arrogate powers which do not vest with it. Remedy available for petitioner to approach appellate authority under Section 19 of RTI Act, 2005."
// 10 //
14. From bare perusal of the above judgments, it appears that if the respondent (complainant) moved an application under Right to Information Act, 2005 before the appellant (O.P.) for providing information and the appellant (O.P.) did not provide such information to him, then the only remedy available to the respondent (complainant) is to file appeal under Section 19 of the Right To Information Act, 2005 before the appellate authority, but the respondent (complainant) did not choose to file appeal before the Appellate Authority and filed the instant consumer complaint, which is not maintainable before the District Forum. 15 According to the respondent (complainant) acknowledgement in respect of the delivery of the letter sent by him through Speed Post to Nand Kumar Rai, Patwari of Village Parsuli, Tahsil & District Gariyaband was not returned to him, whereas the appellant (O.P.) pleaded that the letter sent by the respondent (complainant) was delivered to the addressee Nand Kumar Rai on 19.06.2014. The respondent (complainant) did not attach acknowledgement with the letter, therefore, after delivery of the letter, the acknowledgement could not be returned to the respondent (complainant). The appellant (O.P.) further pleaded that the respondent (complainant) sent legal notice to the appellant (O.P.) through his counsel Shri Kishore Agrawal, Advocate and the appellant (O.P.) gave information to the respondent (complainant) vide letter dated 17.12.2015, 23.02.2016 and 05.04.2016. The above contentions of the appellant (O.P.) is duly // 11 // supported by the affidavit of Dr. Ashish Singh Thakur, Senior Superintendent, Post Offices, Raipur, Division Raipur (C.G.).
16. In Revision Petition No.535 of 2015 - Indian Postal Department Head Post Officer, Head Post Office, Korba Vs. Amitabh Shrivastava, vide order dated 03.06.2015, Hon'ble National Commission has observed thus :
"4. I am of the considered view that the view taken by the Fora below does not stand the scrutiny of law. This view is supported by the Hon'ble Supreme Court in an authority reported in the case of "Union of India versus Mohd. Nazim", AIR 1980 Supreme Court 431, was pleased to hold :-
"These are only some of the provisions of the Act which seem to 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 to the addressee. It is really a branch of the public service, providing postal services subject to the provisions of the Indian Post Office Act and the rules made thereunder. The law relating to the post office in England is not very much different from that in this country. In Triafus and Co. Ltd. V. Post Office (1957) 2 QB 352, the Court of appeal held that the post office is a branch of revenue and the Post Master General does not enter into any contract with a person who entrusts to the post office a postal pocket for transmission overseas. This decision approves the observation of Lord Mansfield in Whitfield v. Le Despencer (1778) 2 Cowp. 754. In the course of his judgment, Lord Mansfield said "The Post Master has no hire, enters into no contract, carries on no merchandize or commerce. But the Post Office is a branch of revenue, and a branch of police created by Act of Parliament. As a // 12 // branch of revenue there are great receipts; but there is likewise a great surplus of benefit and advantage to the public, arising from the fund. As a branch of the police it puts the whole correspondence of the kingdom (for the exceptions are very trifling) under government, and entrusts the management and direction of it to the crown, and the officers appointed by the crown. There is no analogy therefore between the case of the Post Master and a common carrier."
5. This view was also followed by this Bench in case of "Union of India Vs. Piyush Manocha" in R.P. No.1388 of 2012, decided on 20.05.2013. This Commission in its 4 Bench members in the case of the Presidency Post Master and another versus Dr. U. Shankar Rao, (N.C.) Revision Petition No.175 and 247 of 1992, Decided on 15.4.1993, was pleased to hold that "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 non in consideration of any commercial contract. The Post Office cannot be equated with a common carrier."
17. In Revision Petition No.4967 of 2008 - Senior Superintendent of Post Offices, Udupi Division, Udupi Vs. Manipal University (Formerly known as Manipal Academy of Higher Education) Manipal, Rep. by Its // 13 // Registrar and others, vide order dated 10.04.2015, Hon'ble National Commission has observed thus :-
"9. In our opinion, in the light of Section 6 of the said Act, the impugned order cannot be sustained. The Section read as follows :-
"The Government shall not incur any liability by reasons of loss, misdelivery or delay or damage to, and 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 reasons of any such loss, misdelivery, delay or damage, unless he has caused the same fraudulently or by his wilful act or default."
11. Be that as it may, we are of the opinion that in the present case, in the absence of any allegation to the effect that delay in delivery of letter to the Bank was on account of fraudulent or wilful act on the part of the staff of the Petitioner, any liability or loss accruing to the University on account of delay in delivery of the letter of the University to the Bank cannot be fastened on the Postal Authorities as Section 6 of the said Act grants complete immunity to the Government from any liability for the delay in delivery of the letter. A similar view has been taken in a catena of decision of this Commission. However, we do not propose to burden this order by making reference to all those decisions. It would suffice to refer to a full Bench decision in Dr. Jamini Devi (Supra), wherein the object and reason of Section 6 of the said Act has been elaborately explained with copious references to English and Indian Decisions by the Hon'ble Supreme Court and various High Courts. Inter-alia, observing that the relationship between the sender of a postal article and the post office is governed by the Indian Post Office Act and not by Law of Contract or Tort, and that 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 // 14 // 33 and Section 6 or any other regulation or rule, the Ld. President, speaking for the bench held as follows :-
"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 wilful act of 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 wilful act or default."
Also clarifying that by posting a letter or handing over a parcel at the post office for transmission, by affixing stamps a sender only avails of a service statutorily provided by the Government and not a service for the price paid, the Bench opined thus :-
"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 // 15 // 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 outer most point of Kanyakumari. A vast network has been built by the Government to provide this service. It has been emphasised 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."
In light of the above observations, no relief can be granted to the Complainant under Section 3 of the Act as well. Provisions laid in Section 3 of the Act, provide for additional means to a consumer to obtain relief under the said Section, but if the remedy is barred under any Act, then a Consumer Fora, constituted under the Act cannot grant the relief prayed for."
18. In view of the above settled legal position, we are of the view that if the respondent (complainant) sent a letter through speed post and according to the appellant (O.P.), acknowledgement was not attached with the letter during booking of the Speed Post, therefore, the same could not be returned to the respondent (complainant). The information was given by the appellant (O.P.) to the respondent (complainant) regarding delivery of the letter to the addressee. The appellant (O.P.) specifically pleaded // 16 // that letter was delivered to Nand Kumar Rai, Patwari on 19.06.2014, therefore, the appellant (O.P.) did not commit any deficiency in service and unfair trade practice. In view of Section 6 of the Indian Post Office Act, the District Forum has no jurisdiction to take cognizance in the matter. The impugned order passed by the District Forum, is erroneous and is liable to be set aside.
19. Therefore, the appeal filed by the appellant (O.P.) is allowed and impugned order dated 20.12.2016, passed by the District Forum, is set aside. Consequently, the complaint stands dismissed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
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