State Consumer Disputes Redressal Commission
Sub Post Master Jalalabad vs Anu Handa on 23 April, 2015
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.1474 of 2011
Date of Institution: 04.10.2011.
Date of Decision: 23.04.2015.
1. Sub Post Master, Post Office, Jalalabad (W), District
Ferozepur.
2. Head Post Master, Head Post Office, Chowk Baba Sher Shah
Wali, Ferozepur Cantt. Tehsil and District Ferozepur.
3. Post Master, Post Office, Punjab University, Chandigarh.
.....Appellants/opposite parties
Versus
Anu Handa D/o Sh. Om Parkash S/o Sh. Inder Singh, resident of
Dashmesh Nagar, Near Old Satsang Ghar, Ferozepur- Fazilka
Road, Jalalabad (W), Tehsil Jalalabad, District Ferozepur.
....Respondent/complainant
First appeal against order dated
24.08.2011 passed by the District
Consumer Disputes Redressal
Forum, Ferozepur.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Shri Vinod Kumar Gupta, Member.
Shri H.S. Guram, Member.
Present:-
For the appellants : Sh. R.P. Singh, Advocate
For the respondent : None
.............................................. J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The appellants (the opposite parties in the complaint) have directed this appeal against the respondent herein (the complainant in the complaint), challenging order dated 24.08.2011 of First Appeal No.1474 of 2011 2 District Consumer Disputes Redressal Forum Ferozepur (in short, "the District Forum"), accepting the complaint of the complainant by directing the OPs to pay the compensation of Rs.17,500/- to the complainant. The instant appeal has been preferred against the same by the appellants.
2. The complainant Anu Handa has filed the complaint under Section 12 of the Consumer Protection Act, 1986 (in short "Act") against the OPs on the averments that she was to re-appear in private exams of B.A. Part-III and she dispatched some educational testimonials with two demand drafts of Rs.500/- and Rs.1600/- to the Assistant Registrar Punjab University Chandigarh on 07.12.2010 through registered post through OP no.1, vide no.EP033494683IN and no.EP033494808IN. OP no.1 sent the same to the authorities through OP no.2 and 3 and the expenses were paid by the complainant. The complainant waited for her roll number from the above said authorities, but was not received till 27.03.2011. She enquired from Punjab University Chandigarh on 28.03.2011 and came to know that her educational testimonials and demand drafts were not received there. On account of non-delivery of educational testimonials and demand drafts, the complainant had to deposit additional fee of Rs.17,500/- as late fee on the asking of the university authorities. The Punjab University, thereafter issued roll number 30401 to her and only then she could appear in the exams. On account of negligence of the OPs, the above referred documents First Appeal No.1474 of 2011 3 had not reached at the destination to the authorities. The complainant approached the OPs in this regard, but to no effect. The complainant suffered the loss of Rs.19,600/-. The complainant has filed the complaint against the OPs directing them to pay the compensation of Rs.19,600/- to her, besides compensation for mental harassment and litigation expenses as well.
3. Upon notice, OPs appeared and filed written reply, raising preliminary objections that complaint is not maintainable. The complaint is barred by time. There is specific prohibition under Post Office Rules for despatching the valuable articles such as, currencies, cheques, bank notes by speed post. Valuable documents could be sent by way of insured parcel under Rule 184 of Post Office Guide Part I. There is specific prohibition for the postal authorities to transmit such draft of value unless they are duly insured. The OPs contested the complaint of the complainant and took the defence under Section 6 of Post Office Act exempting them from any such liability. The OPs denied the averments of the complainant and prayed for dismissal of the complaint.
4. The complainant tendered in evidence her affidavit Ex.C-1 alongwith documents Ex.C-2 to C-6 and closed the evidence. As against it, the OPs tendered in evidence the affidavit of Kamlesh Chauhan Superintendent Post Office, Ferozepur alongwith document Ex.R-2 and closed the evidence. On conclusion of First Appeal No.1474 of 2011 4 evidence and arguments, the District Forum Ferozepur accepted the complaint of the complainant, as stated above. Dissatisfied with the above order, OPs now appellants have preferred this appeal against the same.
5. We have heard learned counsel for the appellant, as none appeared for the respondent in this case before this Commission. Since after 18th July 2013, nobody took any interest for the respondent in this case now put in appearance. We have carefully heard the submissions of counsel for the OPs now appellants in this appeal and also and gone through the evidence on the record. Ex.C-1 is the affidavit of the complainant sworn in support of her averments, as pleaded in the complaint. Ex.C-2 is the photocopy of daily accounting sheet dated 07.12.2010 to 07.12.2010 with regard to sending the post. Ex.C-3 is the copy of the receipt dated 28.03.2011 regarding the deposit of amount of Rs.17,500/- by the complainant with Punjab University Chandigarh. Ex.C-4 is photocopy of application form for preparation of draft of Rs.500/- by paying additional charges of Rs.46/-. Similarly, the demand draft of Rs.1600/- was prepared, vide Ex.C-5 by paying additional charges of Rs.46/-. Ex.C-6 is the copy of certificate dated 26.03.2011 on the record. The OPs placed on record, the affidavit of Kamlesh Chauhan Superintendent Ex.R-1 on the record. He stated in his affidavit that as per Rule 184 of Post Office Guide Part I, there is specific prohibition under law for transmitting demand draft unless they are First Appeal No.1474 of 2011 5 insured. He also stated that there is exemption from the liability to the OPs under Section 6 of the Post Office Act.
6. From perusal of record and hearing the submissions of counsel for the appellants, we find that District Forum has not appreciated the proper drift of the law in this case. The District Forum relied upon the judgment of the National Commission in case "New India Assurance Company Limited Vs. Dev Kumari Nayak" I(2009)CPJ-131 (NC) holding that provision of Section 6 of the Post Office Act is misused and in case of bona fide acts, the litigants and its subordinate staff can be held liable. The District Forum on the basis of this authority, as well as on the basis of Rule 71 awarded the compensation of Rs.17,500/- to the complainant against the OPs. We find that District Forum has not appreciated the legal position involved in this case. Rule 184 of Post Office Guide Part I lays as under:
" 184. Cases of which Insurance is compulsory:- (1) Coin, bullion, platinum, precious stones, jewellery, government currency notes or bank notes and articles of gold or silver may be sent by post only in insured letters, insured parcels. If a letter or parcel presented at the post office window is found to contain any such object of value, it will not be accepted for transmission by post, unless the sender insures it; and, if an uninsured article manifestly containing any such object of value is found in course of transmission by post it will be either First Appeal No.1474 of 2011 6 intercepted and returned to the sender, or forwarded to the destination and delivered to the addressee subject to the payment of a fee of two rupees. The payment of this fee will not impose any liability on the Central Government.
Note: The fee of two rupees imposed under this rule will be recovered from the sender if the article is refused by the addressee or the addressee cannot be found.
Explanation: In this rule, the expression "articles of gold or silver" includes articles made wholly or partly or gold or silver, but not coins and electro or other plated goods. The expression "coin" does not include out counterfeit coin remitted on behalf of the Issue Department of the Reserve Bank of India and Miints. The expression "currency notes" does not include defaced notes, i.e. notes from which the signature has been cut off after cancellation, remitted on behalf of Issue Department of the Reserve Bank of India. The expression "jewellery" includes watches the cases of which are entirely or mainly composed or gold, silver or platinum.
(2) Insurance is also compulsory for at least the amount specified for recovery from the addressee in the case of all value payable articles (other than value payable letters containing Railway receipts, bills, invoices, documents etc. of no intrinsic value and value payable packets containing printed First Appeal No.1474 of 2011 7 papers, books etc. sent under book packet rates) on which the amount specified for recovery exceeds Rs.100."
It is, thus, evident from perusal of Rule 184 (Supra) that demand draft may be sent by post in insured letters. Herein the demand drafts were sent by the complainant through registered post only, which were not insured. There is specific prohibition laid down by Rule 184 of Post Office Guide Part I in sending the demand draft in an insured parcel. The Apex Court has also examined this point in "Union of India Vs. Mohd. Nazim" reported in AIR 1980 Supreme Court 431, wherein it has been held that provisions of Section 2(f), 17 and 23 (3) of the Post Office Act 1898, indicate that post office is not a common carrier, it is not an agent of the sender of the postal article for reaching. It is really a branch of the public service providing postal services subject to the provisions of the Indian Post Act and the rules made thereunder. The Apex Court further held that being so, the proviso to Section 34 of the Indian Post Office Act is attracted which absolves the Central Government from "any liability in respect of the sum specified for recovery unless and until that sum has been received from the addressee". The plaintiffs claim cannot therefore succeed. Even the National Commission has also examined this point in "Union of India & others vs. M.L. Bora" in revision petition no.2411 of 2006, decided on 13.10.2010, wherein the National Commission has held while relying upon the judgment of Five Members' Bench of the First Appeal No.1474 of 2011 8 National Commission in case of "Post Master, Imphal & ors. Vs. Dr. Jamini Devi Sagolband" I(2000)CPJ 28(NC), which is as under:
"7. 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 willful act or 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 willful act or default. In this case there is First Appeal No.1474 of 2011 9 no allegation that the Post Master or the Director or the Director General was guilty of fraud or willful act or willful default which led to non-delivery of the postal article. An officer of the post office may be held liable for any loss, misdelivery, delay or damage if it can be proved that he has caused such loss, misdelivery, delay or damage by some fraudulent act or willful act or default. In other words, the person who has committed the offence can be sued for damage but no action will lie against either the Central Government or any of its officers vicariously for the willful act or default of the dealing clerk or postal peon. The allegation in this case was that the dealing clerk had negligently sent the postal as VPL. If that is the allegation, the proceedings should have been taken against the dealing assistant or the postal clerk who was held guilty of this willful default. But the Director General or the Director or the Post Master cannot be made liable vicariously for the willful act or default of the dealing assistant."
Similarly, the National Commission has also held in case "The Presidency Post Master and another Vs. Dr. U. Shanker Rao"
reported in 2000(1) CLT-544 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 First Appeal No.1474 of 2011 10 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 Post Office cannot be equated with a common carrier.
7. In view of above referred law discussed by us, the post office is not common carrier and services rendered by the postal authorities are not commercial and rather are governmental functions. Section 6 of the Post Office Act exempts the liability of the postal authorities unless the loss, misdelivery, delay or damage is proved by some fraudulent, willful act or default by them. The complainant could not establish any fraudulent, willful act or default on the part of the OPs in this case. Section 6 grants complete immunity to the Government for liability for loss, misdelivery, delay or damage to the postal articles. No such fraud or willful default has been established on the record by the OPs in this case. The order of the District Forum cannot be sustained in this case, being against the spirit of law and, thus, merits to be reversed in this appeal.
8. As a result of our above discussions, we accept the appeal of the appellants and the order of the District Forum Ferozepur dated 24.08.2011 is hereby set-aside resulting into dismissal of complaint of the complainant.
9. The appellants had deposited the amount of Rs.8,750/- with this Commission at the time of filing the appeal. This amount First Appeal No.1474 of 2011 11 with interest, which accrued thereupon, if any, be remitted by the registry to appellant no.2, by way of a crossed cheque/demand draft after the expiry of 45 days.
10. Arguments in this appeal were heard on 16.04.2015 and the order was reserved. Now the order be communicated to the parties. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (VINOD KUMAR GUPTA) MEMBER (H.S. GURAM) MEMBER April 23, 2015.
(MM)