ORDER
Hon'ble Mr. Dinesh Singh, Member
1. This Revision Petition has been filed under Section 21(b) of The Consumer Protection Act, 1986, hereinafter referred to as the 'Act 1986', challenging the Order dated 11.07.2016 passed by The State Consumer Disputes Redressal Commission, U.T., Chandigarh, hereinafter referred to as the 'State Commission', in F.A. No. 137 of 2016 arising out of the Order dated 09.03.2016 in C.C. No. 539 of 2015 passed by The District Consumer Disputes Redressal Forum - I, U.T., Chandigarh, hereinafter referred to as the 'District Forum'.
2. The Petitioner herein was the Opposite Party before the District Forum, and is hereinafter being referred to as the 'Postal Department'.
The Respondent herein was the Complainant before the District Forum, and is hereinafter being referred to as the 'Complainant'.
3. Heard learned Counsel for the Postal Department. Perused the material on record including inter alia the Order dated 09.03.2016 of the District Forum, the impugned Order dated 11.07.2016 of the State Commission and the Memo of
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Petition.
4. The brief facts of the case have been succinctly articulated by the State Commission in para 3 of its Order, which are as below:
3. Facts of the case are virtually not in dispute. The respondent through speed post, sent a packet containing medicines worth Rs.29,042/-, from Chandigarh to M/s Critical Drugs Agency, Imphal, Manipur, on 04.06.2015. It reached Imphal, in a damaged condition. The Agency aforesaid, to whom the medicines were sent, was intimated by the Postal Authorities to come to its office and check the goods. It was found that medicines ordered were damaged and some were also missing. The Postal Authorities in Imphal, sent a representative to the said Agency, stating that packet was found in a tampered condition. A request was made to accept the delivery. However, the said Agency refused to do so. The tampered packet was sent back to Chandigarh Post Office and was ultimately returned to the respondent.- - -.
5. The Complainant filed a Complaint before the District Forum for loss and injury due to deficiency in service on the part of the Postal Department.
6. The District Forum heard both sides, appraised the evidence, and, vide its Order dated 09.03.2016, partly allowed the Complaint.
For ready appreciation, the appraisal made by the District Forum is quoted below:
6. The case of the complainant is that he hired the services of the OP by sending some important medicines worth Rs.29,042/- vide speed post dated 4.6.2015, but, the said parcel reached Imphal in a tampered condition after which the Imphal post office authorities sent a report to M/s Critical Drugs Agency, Imphal regarding the tampered condition of the parcel. Thereafter the parcel was returned back to the Chandigarh post office and was ultimately returned to the complainant in tampered condition. As per the case of the complainant, safe delivery of the parcel was the responsibility of the OP.
7. The stand taken by the OP is that the contents and value of the postal articles were not disclosed by the complainant and the complainant sent the alleged valuables by violating the speed post rules. Further, it has been argued that the Central Govt. or its Postal Officers are exempted from any liability for loss, mis-delivery of delay or damage to any postal article in course of transmission by post as per Section 6 of the Indian Post Office Act, 1898. Section 6 of the Indian Post Office Act, reads as under:-
"6. Exemption from liability for loss, mis-delivery, delay or damage.- The Government shall not incur any liability by reason of the loss, mis-delivery 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, mis- delivery, delay or damage, unless he has caused the same fraudulently or by his willful act or default."
8. After going through the facts of the case, we are of the opinion that even if the
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contents of the parcel were not disclosed by the complainant, it was open for the OP to insist the complainant to disclose the same. However, in the present case, no such effort was made by the OP. Further, there is a duty cast upon the postal authorities to deliver the consignment to the consignee in its original form without causing any damage to it having accepted the same after collecting the requisite charges. The consignment was in the custody of the postal department and requisite fee was also paid by the complainant for its safe delivery, but, the OP miserably failed to perform its duties properly and parcel was admittedly returned back to the complainant in tampered condition. We are of the opinion that it was a fit case for holding a departmental inquiry and to fix the responsibility of the delinquent, but, the OP has not produced any "action taken report" to show whether proper procedure was adopted to pin point the delinquent employee. In the absence of that, it is clearly established that there was a willful default on the part of the OP. No responsibility was fixed by the Postal Authorities. All this shows that OP is shielding its officials by not initiating any enquiry in the matter and there was a willful act or default on the part of the OP. Moreover, the rulings on which the OP has placed reliance cannot be made applicable to the case in hand for the purpose of its adjudication.
9. Here we are fortified by the authoritative pronouncement of the Hon'ble National Commission in case Postmaster General Kerala & Ors. Vs. Kiron Rasheed, 2011(2) CPC (NC) 328, wherein it was held that the provisions of Section 6 of the Post Office Act, 1898 cannot be applied to modernize forms of transaction such as speed post and email etc. and the order passed by the Kerala State Consumer Disputes Redressal Commission in favour of the Consumer was upheld.
10. In view of the above discussion, we are of the opinion that the present complaint deserves to succeed. The same is accordingly partly allowed. The OP is directed as under:-
(i) To pay Rs.29,042/- to the complainant towards the value of the goods sent through speed post.
(ii) To pay Rs.10,000/- as compensation for mental agony and harassment caused to the complainant;
(iii) To pay Rs.10,000/- as costs of litigation.
11. This order be complied with by the OP within one month from the date of receipt of its certified copy, failing which it shall make the payment of the amounts mentioned at Sr.No. (i) & (ii) above, with interest @ 12% per annum from the date of filing of the present complaint till realization, apart from compliance of direction at Sr.No.(iii) above. (extracts from the District Forum's Order)
7. The Postal Department filed an Appeal under Section 15 of the Act 1986 before the State Commission.
8. The State Commission heard both sides, appraised the evidence, and, vide its Order dated 11.07.2016, dismissed the Appeal.
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For ready appreciation, the appraisal made by the State Commission is quoted below:
7. It was noted that there was tampering with the packet sent through speed post. Some articles were found missing, when packet reached its destination. It was further said that when packet was sent, the Postal Authorities did not insist that its contents and value be disclosed, as such, at this stage, such a plea of violation of the speed post Rules, cannot be taken by the Postal Authorities. To deny benefit of the provisions of the Post Office Act, to the appellant, it was said that the provisions thereof cannot be applied to the modernized forms of transactions such as speed post, emails etc. To say so, reliance was placed upon a judgment of the National Commission i.e. Postmaster General Kerala & Ors.' case (supra).
8. Counsel for the appellant has vehemently contended that when passing above order, view taken by the Hon'ble National Commission, in a case of The Post Master, Imphal and Ors. Vs. Dr. Jamini Devi Sagolband, I (2000) CPJ 28 (NC), was not considered by the Forum. We have perused that judgment. In that case, there was a dispute qua delayed delivery of postal packet containing documents. There was nothing on record to show that articles were removed in transit, in that case.
In the present case, it was noted as a matter of fact by the Postal Authorities at Imphal that packet sent through speed post was tampered and some goods were found missing. Such a situation was not contemplated by the National Commission, in the case of The Post Master, Imphal and Ors' case (supra), when judgment was pronounced in the year 2000. The present is a world of free competition. Not only the Post Office, many other competitors/agencies to send goods/consignments from one place to another place through process like speed post etc. are available. If such a benefit is given to the Postal Office Authorities, no consumer would like to come to them. Furthermore, the Post Office Act is more than 100 years old. By that time, modernized forms of delivery of packets/ consignments through speed post, emails etc., were not even in contemplation.
9. In the case of Sr. Superintendent of Post Offices, Alwar Vs. Pushpendra Singh, 2012
(4) CPJ 722, a packet containing an application was delayed on account of some agitation. In a complaint filed, defence under the provisions of the Post Office Act, was taken up by the Postal Authorities, which was negated by the National Commission, by observing as under:-
"Let us come to the merits of this case. Learned counsel for the petitioner vehemently argued that it was beyond the control of the opposite party to serve the letter upon the complainant. It is explained that there was agitation by the gujjars. He has placed news clips in order to support his case. He argued that under the circumstances, no negligence can be attributed to the respondent.
This is not a coherent argument. A person has to spend Rs.25/- in the hope that his application would reach the destination in time. Otherwise, the application could be sent through ordinary post, it would cost him Rs.5/- only. It is the duty of the State to see to it that the letter reaches within 24 hours or at the most within 48 hours from the date of its receipt. It is no part of the duty of subject to anticipate that the letter would not reach
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the destination due to agitation. The postal department should under all the probabilities, whether it is in its control or beyond its control, must see to it that the letters reach the destination in time.
The second submission raised by learned counsel for the petitioner was that Section 6 of the Indian Post Office Act, 1898 comes to the rescue of the respondent. He commented that there lies a rub for the consumer fora not to speak their mind in this context as they are not armed with this power.
This argument, too, deserves no consideration. The Post Office is not supposed to play with the carrier of the citizens of the country. The letters sent through speed post are always urgent and emergent. If there is delay due to some agitation, it is the duty of the State to find out some other method to prevent the delay in such like matters. The District Forum was pleased to observe:
"Section 6 not providing a windscreen to the postal authorities to justify all acts of negligence, remissness, inaction etc. on their part in discharge of their official duties- Not delivering the speed post article to its addressee clearly constituted a willful act of deficiency in service on their party."
We are in full agreement with the abovesaid observation. The willful default on the part of the petitioner stands proved to the hilt. The petitioner's assumptions are all wet."
10. In the case of Postmaster General, Kerala and Ors' (supra) a similar controversy fell for determination before the National Commission. Taking note of provisions of Section 6 of the Post Office Act, and process of modern means of delivery through speed post etc., it was observed as under:-
"Coming to the merits, the only substantive ground for challenge to the order of the Kerala State Disputes Redressal Commission is that under Section 6 of the Indian Post Office Act 1898, the RP/OP incurs no liability for loss, mis-delivery or damage/delay in delivery, except when caused fraudulently or willfully. This ground was raised before, and examined in sufficient detail, in the impugned order. The State Commission has very rightly observed that this provision "is not in any way connected with the modernized forms of transactions like speed post, e-mail, money transfer etc."
In the case before us, the interview letter for the post of Assistant Manager in the Indian Railway Catering and Tourism Corporation, was sent to the Complainant/Respondent at Kollam, Kerala by Speed Post. It was (as admitted by RP/OP in the Memorandum of Appeal before the State Commission) sent on 16.8.2005 but delivered to him on 22.8.2005. As the interview was scheduled for 25.8.2005 at Delhi, the Complainant /Respondent was left with no choice but to travel by air, incurring extra expenditure. Therefore, both fora below have awarded the air ticket cost in favour of the Complainant.
The impugned order has also referred to the notification of 21.1.1999 of the Ministry of Communication, Department of Posts which was relied upon by the Appellant/OP. Under this notification, "In case of delay in delivery of domestic speed post articles
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beyond the norms determined by the Department of Posts from time to time, the compensation to be provided shall be equal to the composite speed post charges paid." The State Commission has held that this stipulation does not come in the way of the order of the District Forum awarding the cost of air ticket in favour of the Complainant.
6. We are in agreement with the view taken by the State Commission. In the circumstances of this case, the delay in delivery of the communication, though sent by Speed Post, becomes the proximate cause for the expenditure on air travel. Therefore, the order of the District Forum to pay the cost of air ticket was well within its powers under Section 14(1) (d) of the Consumer Protection Act 1986."
11. Benefit under Section 6 of the Post Office Act was not given to the Postal Authorities. In view of facts mentioned above, the case of The Post Master, Imphal's case (supra) is distinguishable on facts and is not applicable to the present dispute.
12. In the modern computerized world, the Postal Authorities are supposed to act with precision and efficiency. Only then, the Post Office will survive. Otherwise, there are many other Agencies, in the same field that too with sufficient expertise and accuracy. In view of above, no ground, whatsoever, has been made out by the appellant, to make interference in the order under challenge.
13. No other point was urged by the Counsel for the parties.
14. For the reasons recorded above, the appeal being devoid of merit, must fail, and the same is dismissed, with no order as to costs. The order of the Forum is upheld. (extracts from the State Commission's impugned Order)
9. The impugned Order of the State Commission is well-appraised and well-reasoned.
10. The State Commission has concurred with the findings of the District Forum.
11. 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.
12. The Award made by the District Forum, and as upheld by the State Commission, to pay the value (Rs. 29,042/-) of the consignment sent through speed post, compensation (Rs. 10,000/-) and cost of litigation (Rs. 10,000/-) to the Complainant, appears just and equitable (refer paras 10 and 11 of the District Forum's Order, quoted in para 6 above).
13. It is an proven and admitted fact that the Complainant sent a parcel containing medicines by speed post from Chandigarh to Imphal, it reached Imphal in tampered condition, the consignee was intimated by the Postal Department to come to its office to check the consignment, it was found that some medicines were damaged and some were missing, the consignee did not accept the parcel, the tampered parcel was sent back to the Complainant at Chandigarh by the Postal Department.
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14. 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'.
15. In this regard, the following are being quoted for ready reference:
Statement of Objects And Reasons for the Act 1898:
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
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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 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)
16. The Act 1986 is a comprehensive enactment for speedy and simple redressal to consumer disputes and for better protection of the interests of consumers.
17. Having paid for the services, the Complainant was a 'consumer' within the meaning of Section 2(1)(d)(ii) of the Act 1986.
18. The mere fact of a parcel containing medicines, sent by speed post, being received in tampered condition by the consignee, with some medicines damaged, some missing, the consignee's refusal to accept the tampered parcel, and the tampered parcel then being returned to the Complainant, clearly falls within the meaning of 'deficiency in service' under Section 2(1)(g) & (o) of the Act 1986.
19. 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 6 and 8 above, it need not be quoted again.)
20. 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.
21. 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).
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
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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 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.
22. 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.
23. 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 15 above, and also tantamount to this Commission granting carte blanche for inefficiency and deficiency without responsibility or accountability, which situation would be absurd.
24. A contention has been made in para 12 under Grounds of Revision in the Memo of Petition that "Had the contents of the parcel were so precious the same must have been got insured by the complainant.". It cannot be that the Exemption from liability for loss, misdelivery, delay or damage provided under Section 6 envisages that the exemption is so all encompassing and so unquestionable that a 'consumer', who pays for the services to send a parcel through speed post through the postal department, has to send his consignment either by taking prior insurance to cover 'postal perils' or to send it at his own risk and cost with the postal department being immune to any liability or accountability whatsoever. Such contention is absurd on the face of it.
25. 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, also, its case fails. This is a fit case to impose just and reasonable cost.
26. 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.
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The Award made by the District Forum vide its Order dated 09.03.2016, and as upheld by the State Commission vide its Order dated 11.07.2016, is confirmed. It will be open to the Postal Department to recover the Award and the Cost from its concerned officials responsible, after adopting the due process.
27. 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.
28. A copy each of this Order be sent to the District Forum and to the Complainant and to the Chief Postmaster General, Punjab & U. T. Chandigarh by the Registry within three days of its pronouncement.
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DR. S.M. KANTIKAR
PRESIDING MEMBER
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DINESH SINGH
MEMBER
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