State Consumer Disputes Redressal Commission
Department Of Posts vs Ajit Singh on 22 November, 2017
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.549 of 2017
Date of Institution : 20.07.2017
Order Reserved on: 21.11.2017
Date of Decision : 22.11.2017
Department of Posts- Government of India through Sr. Post Master,
Head Post Office, Hoshiarpur (Punjab) 146001.
.....Appellant/opposite party
Versus
Ajit Singh aged about 58 years S/o Sh. Amar Singh R/o 130L, Model
Town, Hoshiarpur (Punjab) 146001.
.....Respondent/complainant
First Appeal against order dated
02.06.2017 passed by the District
Consumer Disputes Redressal Forum,
Hoshiarpur.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member
Smt. Surinder Pal Kaur, Member Present:-
For the appellant : Sh. R.P. Singh, Advocate
For the respondent : Sh. Ajit Singh, in person
............................................ J.S KLAR, PRESIDING JUDICIAL MEMBER :-
Challenge in this appeal by appellants is to order dated
02.06.2017 of District Consumer Disputes Redressal Forum Hoshiarpur (in short the 'District Forum'), directing appellant to refund the cost of the parcel delivery amount of Rs. 3886/- and also refund of cost of the customs of Rs.7471/-, besides to pay interest on the aforesaid total amount of Rs.11,357/- @ 9% per annum from the date of sending the parcel i.e. 17.08.2016 till realization and the appellant was further directed to pay compensation to the First Appeal No.549 of 2017 2 respondent for physical harassment to the tune of Rs. 7,000/- and litigation expenses of Rs. 2,500/- by partly accepting the complaint. Respondent of this appeal is complainant in the complaint before the District Forum and appellant of this appeal is opposite party (OP) therein and they be referred as such hereinafter for the sake of convenience.
2. The complainant filed complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OP on the averments that he approached OP on 17.08.2016 for sending the parcel of goods to his daughter in Berlin (Germany) and after checking the parcel and weighing the same, it was accepted by OP and it directed him to pay Rs.3886/- and receipt No. ACP132619844IN was issued to him by OP. It was further averred that at the time of accepting the parcel, no other requirement was asked or demanded by OP and it assured that the parcel would be delivered within 15 to 20 days at the destination and accordingly, the complainant informed his daughter to receive the parcel. After 20 days, he inquired from his daughter about the receipt of parcel, but she apprised him that no such parcel has been delivered to her. Thereafter, he approached post office, but no information was given to him and rather OP asked him to file written complaint. The complainant lodged two complaints bearing no.146001-01307 and 100071-74147 respectively, but no clue was given by OP. On 28.09.2016 after about 40 days, OP informed the complainant to ask the addressee to contact Berlin Customs office. His daughter First Appeal No.549 of 2017 3 approached the Berlin Customs office, but she was asked to inquire from the Indian Postal Department and no information about parcel was provided to her. His daughter had to run from pillar to post for receiving the parcel, but to no effect. The complainant was shocked to receive letter from OP on 24.10.2016 asking him to collect the parcel and to pay customs duty of Rs.7400/-. Since there were valuable goods worth more than Rs. 17,000/- in the parcel, the complainant has no choice but to pay the amount of Rs. 7441/- to OP for receiving the parcel. The complainant protested that since no clue was given about the parcel, there is no question of not accepting the parcel, but no action was taken by OP on his complaint. It was further averred that OP was duty bound to inform him that the parcel could be subject to customs charges which was never informed to him as a result of which not only the parcel was not delivered at destination to addressee, but he had to pay extra customs of Rs. 7471/-. If the complainant was informed about the possibility of imposition of customs duty, he would not have booked the parcel with the opposite party at all. The complainant alleged deficiency in service on the part of OP. The complainant prayed that OP be directed to refund the cost of parcel delivery of Rs.3886/- alongwith interest; further to refund cost of the customs Rs.7471/- alongwith interest; to pay Rs.50,000/- as compensation for mental harassment; and to pay Rs.10,000/- as cost.
3. Upon notice, OP appeared and filed written reply and contested the complaint of the complainant vehemently by raising First Appeal No.549 of 2017 4 preliminary objections that the complainant is not a consumer of OP, since it being a post office is not an agent of complainant, as sender of parcel in question, under the provisions of Section 2(f), 17 & 23 (3) The Indian Post Office Act, which 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 Indian Post Office Act and the Rules made thereunder. The services rendered by OP Post Office are merely statutory and there is no contractual liability of the same. The complaint is alleged to be not maintainable against OP since OP Post Office is exempted from any liability for any loss, mis-delivery, delay or damage to any postal article in the course of transmission by post unless it is caused fraudulently by willful act or default under Section 6 of Indian Post Office Act. The complainant has not leveled any allegations of fraud or willful act or default against OP in the complaint. OP denied that there is any deficiency in service on its part. OP is not liable to pay any amount to the complainant. OP was not having the knowledge of the contents of the parceled article, as the complainant had not disclosed/mentioned the contents of the parceled articles in question on its face at the time of its booking and also had not got it insured, as required under rule 172 of insurance given in Post Office Manual/Guide. The complainant has suppressed the material facts from this Forum and, therefore, he is not entitled to the relief claimed. The complaint was contested by OP even on merits by First Appeal No.549 of 2017 5 averring that complainant booked a parcel and also paid a sum of Rs.3886/- as booking charges. It was also admitted that the said parcel was received back unclaimed and the same was delivered to him. OP controverted the other averments of the complainant and prayed for dismissal of the complaint.
4. The complainant tendered in evidence his affidavit Ex.C- 1 and supplementary affidavit Ex.C-2 alongwith copies of documents Mark C-3 to Mark C-10 and closed the evidence. As against it, OP tendered in evidence affidavit of Kulwant Singh, Sr. Postmaster Ex.OP-1 alongwith copies of documents Ex.OP-2 to Ex.OP-13 and closed the evidence. On conclusion of evidence and arguments, the District Forum partly accepted the complaint of the complainant, as referred to above. Aggrieved by above order, the OP now appellant has preferred this appeal against the same.
5. We have heard the learned counsel for the parties and also examined the written points placed on record by counsel for appellant. Affidavit of complainant is Ex.C-1 which has also been perused by us with the able assistance of counsel for the parties. Supplementary affidavit of Ajit Singh complainant is Ex.C-2. Mark C-3 is the complaint lodged by Ajit Singh to Post Master Hoshiarpur regarding non delivery of registered parcel. Mark C-4 is the copy of postal receipt dated 17.08.2016. Mark C-5 is the copy of reply dated 22.09.2016 sent by OP to complainant regarding registration of his complaint and necessary action to be followed in the matter. Mark C-6 is the current status of complaint lodged by First Appeal No.549 of 2017 6 complainant. Mark C-7 is the letter addressed to complainant dated 28.09.2016 by OP regarding informing the sender to contact addressee to contact customs. Mark C-8 is copy of letter dated 07.11.2016 by OP to complainant to the effect that booked parcel was received back as unclaimed and he was requested to collect it. Mark C-9 is letter dated 01.12.2016 by complainant to OP regarding submitting the Demand Draft of Rs.7471/- as custom charges. Mark C-10 is the custom declaration CN 23. OP also filed affidavit of Kulwant Singh Sr. Postmaster Hoshiarpur Ex.OP-1 to the effect that post office is not an agent of complainant, as sender of parcel in question, under the provisions of Section 2(f), 17 & 23 (3) which indicate that the post office is not a common carrier. This witness reiterated the same lines as pleaded in written reply on oath. Ex.OP-2 is the copy of Indian Post Office Act, 1898. Ex.OP-3 is the copy Post Office Guide Part I. Ex.OP-4 is the tracking of the booked parcel. Ex.OP-5 is the complaint status report and Ex.OP-6 is intimation sent by OP to complainant for giving reply. Ex.OP-7 is letter dated 28.09.2016 from OP to complainant regarding asking the sender to contact addressee to contact customs. Similarly, documents Ex.OP-8 to Ex.OP-12 have also been carefully perused by us with the able assistance of counsel for the parties.
6. Section 6 of the Indian Post Office Act, 1898 is the relevant provision of law, which is reproduced, as under:-
"6. Exemption from liability for loss, misdelivery, delay or damage: The (Government) shall not incur any liability by First Appeal No.549 of 2017 7 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 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, misdelivery, delay or damage, unless he has caused the same fraudulently or by his willful act or default."
It is, thus, plain from perusal of Section 6 of Indian Post Office Act 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 in so far as such liability may in express terms be undertaken by the Central Government. The postal employee or the Government employee cannot be held liable unless misdelivery, delay or damage to the postal article is proved to have been caused either fraudulently or willful act or default. Now, we have to examine this point as to whether the misdelivery of the postal article at the destination is due to fraud or willful act or default of OP. We find that in the case in hand, there is no undertaking taken by Central Government in express terms to be responsible for any misdelivery, delay or damage to any postal article. The postal article was not insured as required by Rule 172 of Postal Authorities. The complainant is unable to persuade us that the Central Government assumed undertaking in express terms in this case.
7. Now, we further proceed to decide the case as to whether the above referred delay, loss or misdelivery to postal article First Appeal No.549 of 2017 8 in the course of transmission has been caused fraudulently or by willful act or default. The booked parcel reached Germany and it was not collected therefrom by the addressee. The Germany Government imposed custom duty on the article booked by the complainant. OP cannot be held liable for the custom duty imposed by Germany Government on the booked parcel. We do not find any deficiency in service on the part of OP on the point that they have not informed the complainant about the custom charges. There is no excuse for ignorance of any rules or law in force in the country. The custom rules of each country differ. We cannot find any deficiency in service on the part of OP with regard to imposition of custom duty on the booked parcel by Germany Authorities. The complainant cannot pass the buck on the OP that he was not intimated about the custom charges, when the parcel was booked by OP. The booked parcel reached Germany and on account of non payment of custom charges thereat, it was not received by the addressee thereat.
8. The National Commission has held in "The Presidency Post Master and another Vs. Dr. U. Shanker Rao" 1993(1) CLT- 544 that the services rendered by the Post Office are merely statutory and there is no contractual liability. 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 National Commission has also held First Appeal No.549 of 2017 9 in "Senior Superintendent of Post Offices, Trivandrum and other Vs. Keltron Proectors Ltd." 2002(3)CLT.498 that there was no evidence wherefrom knowledge of the contests of the parcel can be imputed to the Department. No justification for awarding any sum in excess of Rs.100/- was there. The National Commission also held in "Union of India and another Vs. State Bank of India and others"
2007(2)CLT-50/51 that draft sent by registered post. Non delivery of- no allegation of willful negligence in the complaint. Postal department cannot be held liable for any loss/non-delivery in view of the provision of Section 6 of the Indian Post Office Act, 1898. Even Apex Court has held in "Union of India Vs. Mohd. Nazim"
1993(1)CLT-544 that without proof of loss or mis delivery in course of transmission brought about fraudulently by willful act or default, the Postal Department is not liable. We cannot come across any evidence on the record wherefrom OP can be attributed the knowledge of contents of the booked parcel. There is no declaration filed by the complainant disclosing the contents of booked parcel with OP nor it was insured by the complainant under Rule 172 of Postal Rules.
9. We have, thus, come to the conclusion that complainant has failed to prove that the non-delivery of the booked parcel was solely due to willful act or default caused fraudulently by OP and hence liability of OP is exempted under Section 6 of Indian Post Office Act in this case, as referred in the above authorities. The District Forum has gone wrong in not understanding the import of the First Appeal No.549 of 2017 10 matter in its proper perspective. The order of the District Forum is not sustainable in the eye of law.
10. As a corollary of our above discussion, we accept the appeal of the appellant and by setting aside the order of the District Forum Hoshiarpur dated 02.06.2017, the complaint of the complainant now respondent in the appeal stands dismissed.
11. The appellant had deposited the amount of Rs.10,897/- with this Commission at the time of filing the appeal. This amount with interest, which accrued thereupon, if any, be remitted by the registry to appellant by way of a crossed cheque/demand draft after the expiry of 45 days.
12. Arguments in this appeal were heard on 21.11.2017 and the order was reserved. Certified copies of the order be communicated to the parties as per rules.
13. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER November 22, 2017 MM