Petition.

4. The short point in the case is that a call letter for a written examination for a job was sent to the Complainant by registered post on 06.04.2018. The written examination was scheduled on 14.04.2018. The letter was received by the Complainant on 23.04.2018 i.e. 17 days after the date of despatch. The date of the written examination i.e. 14.04.2018 had by then elapsed. The Complainant made his grievance with the Postal Department. It was not redressed, he was rudely behaved with. The Complainant (then) filed a Complaint before the District Forum for loss and injury due to deficiency in service on the part of the Postal Department.

5. The District Forum heard both sides, appraised the evidence, and, vide its Order dated 16.11.2018, allowed the Complaint.

For ready appreciation, the appraisal made by the District Forum is quoted below:

DECISION WITH REASONS

From the above discussion it is clear that a letter was sent to the complainant, so complainant is a consumer being the addressee in the instant case. The consignment track reports & the written version filed by the Op-5 makes it clear that a letter has been unnecessarily remained under the disposal of the Op-2 for 3 consecutive days. From the written version submitted by the OP-5 it is clear that the said letter moving to and from Chakvrigu S.O. to RMS Malda to Tapan then to RMS Malda, then further to Tapan S.O with the knowledge of the Balurghat H.O. which cannot shun its responsibility though the Balurghat HO had not been made as an opposite party in the said complaint. The Balurghat HO should know under which branch or sub-post office, Chechai, the native village of the complainant should come. In adjudicating this case we may take refuge to the findings and judgment dt. 15.12.2017 in RP No. 1803 2017 of NCDRC [2018 CJ 492 (N.C). In a later decision this commission in Post Master General, West Bengal Circle General Post Office (GPO) vs. Dipak Banerjee and another, 2015 4 CPJ 329 (NC) has held as follows:

"In order to appreciate the rival stands, it would be necessary to analyse the scope of Section 6 of the said Act, which reads as follows:

"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 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."

The Section is in two parts. The first part provides for a complete immunity to the Government, unless some liability is undertaken by the government under the statute in express terms. Similar immunity is extended to the officers of the post office. The second part carves out an exception to the blanket immunity to its officers and provides that they can incur liability if it is shown that the loss, misdelivery, delay or damage, etc. had been caused fraudulently or by the willful act

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or default of such an employee. Thus, a plain reading of the Section leaves little scope for doubt that unless it is proved that the loss, misdelivery or delay has been caused fraudulently or by a willful act or default on the part of its officer, no claim would lie against the Postal Department merely by reason of the loss, misdelivery or delay or damage to the postal article, as the case may be in the course of transmission of the article by post. In other words, the provision, an antiquated piece of legislation, dating back to the year 1898, grants total immunity to the Postal Department from incurring any liability for delay in delivery of the article in the course of its transmission by post, unless a fraud or willful act or default on the part of its employee is proved."

In this case the complainant missed an opportunity of getting the job for the post of Majdur under Garulia municipality. It is pertinent to note that there is no enquiry report filed before this Forum regarding the cause of delay at the sub-post office level. No circumstances have been brought on record by the OPs to show that there has been any willful act or default on the part of its officers.

Hence it is

O R D E R E D

The OP-2 is directed to pay a compensation of Rs.1,00,000/- (One lakh only) and litigation cost of Rs.5,000/- (Five thousand only) to the complainant within 30 days from the date of this order. The superintendent of post, Dinajpur Division, Balurghat is instructed to take proper care for payment of the compensation to the complainant within stipulated period.

The case succeeds on contest.

(extracts from the District Forum's Order)

6. The Postal Department filed an Appeal under Section 15 of the Act 1986 before the State Commission.

7. The State Commission heard both sides, appraised the evidence, and, vide its Order dated 31.05.2019, dismissed the Appeal.

For ready appreciation, the appraisal made by the State Commission is reproduced below:

D E C I S I O N S W I T H R E A S O N S

Having heard the valuable arguments of both sides and after going through the entire pleadings of both sides, it appears to us that the address written in the exchange card of the respondent was recorded as per the caste certificate issued by S.D.O., Balurghat in 1985 where the native village of the complainant Chachai was shown within Balapur P.O under Tapan, S.P.O. The OP no. 2 that is Chakvrigu, S.P.O has received the said consignment on 09/04/2018 and remained the same in their custody till 12/04/2018. Thereafter, dispatched the same to Malda, H.P.O. Malda, H.P.O. again sent the consignment to Balurghat H.P.O. on 14/04/2018 and Tapan S.P.O. had received the

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same on 16/04/2018 through Balurghat H.P.O. Ultimately, it was handed over to the complainant on 23/04/2018 and the consignment track record speaks that the item was dispatched for delivery on 20/04/2018 while the date of interview was fixed on 14/04/2018. It is highlighted during the time of course of argument on the part of the Ld. Senior Advocate of the appellants that as per provision of Indian Post Office Act the Government is always exempted from liability for any loss or mis-delivery or delay or damages for any consignment and the officer of the post office has no personal liability for such loss, mis-delivery, delay or damages unless he has caused the same fraudulently or by his willful act or default. Ld. Advocate of the appellant submitted that casting a responsibility of opposite party no. 2 on the part of the Ld. Forum to pay compensation to the respondent is not warranted in law and the Forum has not empowered by virtue of provision of section 6 of Indian Post Office Act even in the event of loss of domestic speed post article or its components or damaged to the contents compensation shall be doubled to the amount of composite speed post charges.

At the time of argument Ld. Advocate of the appellant further argued that as per provision of section 3 of the Consumer Protection Act the consumer court shall not exceed the amount prescribed by the Central Government for delay of the delivery of that date or article. In support of his case Ld. Advocate of the appellant referred catena of judgments reported in (i) 2017 CPJ 115 (NC), (ii) 2002 STPL (CL) 1036 (NC) etc. Ld. Advocate of the respondent at the time of his turn during the course of the argument mentioned that post offices are well empowered to make a correction of the address if the address is mis-spelt or wrong PIN code no is inserted. He pointed out in this particular appeal case that while the notice of appeal was sent to the respondent from this Circuit Bench, the local post offices has corrected the address of the addressee which clearly indicates that the post offices due to their lackadaisical attitude has deliberately kept the consignment in their custody for long days without any valid reason and ultimately has delivered the same when the date of interview was over. He pointed out that section 3 of CP Act has empowered the Ld. Forum to override the provisions of other Acts without derogating the provisions of other statues. He pointed out that an unemployed youth at the age of 37 has lost an opportunity of getting a job. Being a man of scheduled caste community, he runs his life in a lower middle-class family in sub-altern level. Ld. Advocate of the appellant at the time of argument mentioned before this Commission that scope of the Consumer Protection Act is very limited one as because any provision of this Act shall not derogate the provisions of any other law. He pointed out that where the specific provision of section 6 of Indian Post Office Act, 1898 is there, no other remedies lies for breaching of the provisions of the post office Act.

After going through the section 3 of the CP Act, it appears to us the jurisdiction of consumer fora should not be curtailed unless there is an expressed provision prohibiting the consumer fora to take up the matter. The provisions of section 3 clearly relates "In addition to" and not derogatory to any other law. So, the Ld. Forum had vested the power to make award of compensation in favour of a bona fide consumer who has missed an opportunity of getting a job due to deficiency of service or default on the part of the concerned post office and postal authorities.

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So, after hearing the valuable argument of both sides, the Commission finds no error in the decision of the Ld. Forum. The Commission finds no irregularities in the order passed by the Ld. D.C.D.R.F., Balurghat. No infirmity also detected and for that reason the Commission does not want to interfere with the order of the Ld. Forum. Thus, it appears to us that the appeal devoids of any merit.

Hence it is ordered:-

That the appeal be and the same is hereby dismissed on contest without any cost. The judgment and final order of Ld. D.C.D.R.F., Balurghat dated 16/11/2018 in reference to CC no. 52 of 2018 is hereby confirmed. Let the order be communicated to the Ld. D.C.D.R.F., Balurghat and the copy of the order be handed over to the parties of this case free of cost.

(extracts from the State Commission's impugned Order)

8. The Revision Petition has been filed with delay of 87 days.

9. The stated reasons for delay, as mentioned in paras 2 to 5 of the application for condonation of delay, and the prayer made, are as below:

2. That the impugned order was passed by the Ld. State Commission on 31.05.2019 and the copy of the impugned order was despatched by the Ld. State Commission on ……… which was received on 11.07.2019. The present Petition has been filed on . . .2019, hence, there is a delay of ……… days in filing the present Petition.

3. That it is necessary to mention here that almost all the record of this case was in Gujarati and had to be translated into English in order to file the present petition.

4. That the delay in filing the Revision Petition is Procedural delay. The application of the applicant is liable to be accepted in view of the observations made by the Hon'ble Supreme Court of India in Case titled as State (NCT of Delhi) V. Ahmed Jan, 2008 (14) SCC 583. The Hon'ble Supreme Court while deciding above case observed as under:

"It is axiomatic that decisions are taken by officers/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay-intentional or otherwise- is a routine. Considerable delay of procedural red-tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest."

5. That the delay in filing the captioned Petition is neither intentional nor deliberate but on account of the reasons sated herein above.

PRAYER

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It is, therefore, most respectfully prayed that this Hon'ble Commission may be pleased to:-

a. condone the delay of days in filing the present Revision Petition. b. pass such other order(s) as this Hon'ble Commission may deem fit in the facts and circumstances of the case.

10. The Act 1986 is to provide "speedy and simple redressal to consumer disputes"

(Statement of Objects and Reasons). The period of limitation to file Revision Petition is 90 days (Regulation 14(1)(i) of The Consumer Protection Regulations, 2005). This Petition has been filed with delay of 87 days.

11. The number of days of delay has been kept blank in the application for condonation of delay including in its prayer clause. A bland averment of "Procedural delay" has been made. The stated reasons point towards managerial inefficiency and perfunctory and causal attitude to the law of limitation, they are illogical and absurd in explaining convincingly and cogently the delay in filing the Revision Petition.

12. Sufficient cause to explain the delay is not forthcoming.

13. However, in the interest of justice, and for adjudication of the case on merit, on facts and law, the delay in filing the Petition is condoned.

14. The impugned Order of the State Commission is well-appraised and well-reasoned.

15. The State Commission has concurred with the findings of the District Forum.

16. Within the ambit and scope of Section 21(b), no crucial error in appreciating the evidence by the two Fora below is visible, as may cause to require de novo re-appreciation of the evidence in revision.

17. The Award made by the District Forum, and as upheld by the State Commission, to pay compensation of Rs. 1 lakh and cost of litigation of Rs. 5,000/- to the Complainant, appears just and equitable.

18. It is an admitted fact that a call letter for a written examination for a job was sent by registered post on 06.04.2018. It was received on 23.04.2018, after the date of the examination (14.04.2018) had elapsed, and after 17 days of despatch.

19. The principal defence of the Postal Department is of 'Exemption from liability for loss, misdelivery, delay or damage' provided under Section 6 of The Indian Post Office Act, 1898, hereinafter referred to as the 'Act 1898'.

20. In this regard, the following are being quoted for ready reference:

Statement of Objects And Reasons for the Act 1898:

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The present Bill proposes to confer the protection and powers which have been found necessary in the extension and increase of postal business. It includes within its scope postal insurance, the value payable post, and the Post Office money order system, and declares and limits the liability of Government in respect of these matters.

Section 6 of the Act 1898:

Exemption from liability for loss, misdelivery, delay or damage. - 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 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.

Statement of Objects And Reasons for the Act 1986:

The Consumer Protection Bill, 1986 seeks to provide for better protection of the interests of consumers and for the purpose, to make provision for the establishment of Consumer councils and other authorities for the settlement of consumer disputes and for matter connected therewith.

To provide speedy and simple redressal to consumer disputes, a quasi-judicial machinery is sought to be set up at the district, State and Central levels. These quasi-judicial bodies will observe the principles of natural justice and have been empowered to give relief of a specific nature and to award, wherever appropriate, compensation to consumers. Penalties for non- compliance of the orders given by the quasi-judicial bodies have also been provided.

Section 2(1)(d)(ii) of the Act 1986:

"consumer" means any person who,—

(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose;

Section 2(1)(g) of the Act 1986:

"deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;

Section 2(1)(o) of the Act 1986:

"service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing

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insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;

(emphasis supplied)

21. The Act 1986 is a comprehensive enactment for speedy and simple redressal to consumer disputes and for better protection of the interests of consumers.

22. Having paid for the services, the Complainant was a 'consumer' within the meaning of Section 2(1)(d)(ii) of the Act 1986.

23. The call letter was sent by registered post on 06.04.2018. It was received on 23.04.2018, after the date of examination (14.04.2018) had elapsed, though timely receipt of the call letter by the Complainant was essential. Belated receipt, after 17 days of despatch, and after 09 days of the written examination for which it was meant, materially impacts the whole gamut, and evinces the loss and injury to the Complainant.

That being as it is, the mere fact of a registered letter being delivered after 17 days of despatch clearly falls within the meaning of 'deficiency in service' under Section 2(1)(g) and Section 2(1)(o) of the Act 1986.

24. The Postal Department has taken recourse to protection provided under Section 6 of the Act 1898. This has been aptly dealt with by both the Fora below (Their reasoned appraisal has been reproduced in paras 5 and 7 above, it need not be quoted again.)

25. The Postal Department adduced no evidence before the forum of original jurisdiction i.e. the District Forum, or made any averment or assertion in its appeal before the State Commission or in its memo of petition before this Commission, in respect of having conducted any inquiry or fact-finding to ascertain whether or not the delay in delivery was caused

"fraudulently" or by "willful act or default" by its concerned officials. It belies reason that

"fraudulently" or by "willful act or default" is summarily ruled out, without any inquiry or fact finding, and the exemption provided under Section 6 of the Act 1898 is straightaway adduced in defence. If that has to be so, each and every "loss, misdelivery, delay or damage" has necessarily to be presumed to not having been caused "fraudulently" or by "willful act or default" by officials of the Postal Department. Such reading of Section 6 would be absurd.

26. Section 6 does not intend to provide an unfettered licence to the officials of the Postal Department for inefficiency and mismanagement or to cause loss and injury to its 'consumer'(s) (or to abridge their dignity).

The exemption provided by Section 6 concomitantly requires [a] inquiry or fact-finding to determine whether or not the "loss, misdelivery, delay or damage" was caused "fraudulently"

or by "willful act or default" on the part of the concerned officials, [b] fixing accountability, as warranted [c] inculcating systemic improvements for future and [d] being alive to the loss and injury caused to its consumers. These concomitant requirements are missing in the instant case. It cannot be that the concerned officials of the Postal Department are immune to accountability

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within the Department, and also immune to accountability before a court / tribunal of law. And it cannot be that systemic improvements for future are not considered, and loss and injury to its consumers are treated as irrelevant and immaterial. Such reading of Section 6 will be totally irrational and misplaced.

27. Section 6 does not provide unquestionable immunity. The onus to establish that the protection of Section 6 can be taken in the given facts and circumstances of a particular case is on the Postal Department, which onus it has not discharged in this case. And this has to be seen in conjunction with deficiency in service under the Act 1986, which is writ large in the facts and circumstances of this case.

28. In the given facts, condoning such attitude, and mechanically applying the protection of Section 6 of the Act 1898, and outrightly overlooking the deficiency in service under the Act 1986, will defeat the purpose of both, the relevant provisions of the Act 1898 and the relevant provisions of the Act 1986, quoted in para 20 above, and also tantamount to this Commission granting carte blanche for inefficiency and deficiency without responsibility or accountability, which situation would be absurd.

29. The Postal Department, after its deficiency in service, agitated, unsuccessfully, in one, two, and now three, Consumer Protection Fora, needlessly wasting public time and monies. It has already been critiqued that in the given and admitted facts of this case, to apply the protection provided under Section 6 would be absurd. The correct approach would be for the Postal Department to inculcate systemic improvements and imbibe responsibility and accountability.

In the third Fora i.e. this Commission, its case fails on admission itself. This is a fit case to impose just and reasonable cost.

30. With the above discussion, the Revision Petition, being patently misconceived and totally devoid of merit, is dismissed, with advice to inculcate systemic improvements and imbibe responsibility and accountability, and with Cost of Rs. 1 lakh to be deposited in the Consumer Legal Aid Account of the District Forum by the Postal Department within four weeks of the pronouncement of this Order.

The Award made by the District Forum vide its Order dated 16.11.2018, as upheld by the State Commission vide its Order dated 31.05.2019, is confirmed.

It will be open to the Postal Department to recover the Cost and Award from its concerned officials responsible, after adopting the due process.

31. Needless to add that in case of omission or failure in compliance, the District Forum shall undertake execution, both for 'Enforcement' under Section 25(3) and for 'Penalties' under Section 27 of the Act 1986, as per the law.

32. A copy each of this Order be sent to the District Forum and to the Complainant and to the Postmaster General, North Bengal Region, Siliguri by the Registry within three days of its pronouncement.

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......................

DINESH SINGH

PRESIDING MEMBER

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