AMIT VERMA vs SR SUPERINTENDENT OF POST OFFICES

-ORDER dated 12. 7. 2007 passed by the learned Divisional Forum, Jammu (hereinafter to be referred to as the Forum) has been taken in appeal by the appellant. The case of the appellant in brief is that he had qualified to appear for the second stage examination of Civil Services Examination and the Union Public Service Commission (UPSC) had fixed the date of said examination for 21. 10. 2005. On 8. 8. 2005, UPSC sent him the requisite form through speed post which was to be delivered at his home address. The case of the appellant is that the said Form was delivered at his residence on 23. 8. 2005. As per the procedure prescribed by the UPSC the said form was required to be deposited in the office of the UPSC on 22. 8. 2005. In case of non-delivery of that Form to an eligible candidate upto the fixed timelimit of 15. 8. 2005, then he was required to contact at once either the Commission or the "facilitation Counter" for getting the new one. It is alleged that the appellant had been daily visiting the Sub-post Office, Nagrota which is located in his home town upto the last date of 15. 8. 2005. On 19. 8. 2005, the appellant contacted on telephone the office of UPSC at Delhi and informed the concerned officials about the non-receipt of the requisite form. In response, the officials of the UPSC directed him to come personally to collect the form. Thereafter on the same day i. e. on 19. 8. 2005, the complainant went to Delhi and collected the " Form" which could not be filled by him there on the spot because certain entries could not be made because of non-availability of relevant record. He was thus compelled to come back to Jammu on 20. 8. 2005 and left for Delhi on the next day, i. e. on 21. 8. 2005. After completing the formalities of filling the "form", he submitted the same in the office of UPSC on 22. 8. 2005. It was on 23. 8. 2005 that appellant received the "application form" at his home address though another duly filled in form already stood deposited by him in Delhi. It is also alleged that eleven days delay was wilful as a result of negligent conduct. In the normal course of conduct, the Form should have been received within 6 to 8 days from its date of despatch. The respondent in their written version have admitted that the speed post in question was received in Railway Mail Service (RMS) Bhawan, Jammu on 10. 8. 2005 but it was misplaced and with great efforts could be located on 21,8. 2005. It is further stated that speed post parcel in question was sent through speed post from Post Office Centre RMS Bhawan, Jammu to CRC, Jammu on 22. 8. 2005 and was received at "kandoli Nagrota Branch" of the OPs on 23. 8. 2005 where it was delivered to the appellant on the same day.

THE appellant had claimed the following reliefs: 1. Rs. 50,000 for mental agony. 2. Rs. 50,000 for deficiency in service. 3. Litigation expenses in the sum of Rs. 5,000. 4. Recovery of actual expenses incurred for making forced journey from the place of residence to the office to UPSC, Delhi and back to home and again to Delhi with requisite documents: Rs. 2,300.

The respondents had admitted the delay on the plea that speed post parcel remained untraced for 15 days in RMS Bhawan, Jammu but have denied their liability to reimburse the appellant as the case was governed under the provisions of Section 6 of the Indian Post Office Act, 1898 read with Clause 84 of Post Office Guide Part 1 and read with Rule 66 (b) of Indian Post Office Rules, 1933. A conjoint effect of the legal position which he has projected can be that the appellant herein could be paid compensation equal to composite speed post charge paid by him. The learned Forum in the impugned order has held: "there is no explanation given as to why article in question remained in speed post centre from 10. 8. 2005 to 21. 8. 2005 and the delay has not been explained at all". However, it denied the relief to the appellant on the plea that under the relevant law laid down under the Indian Post Office Act and rules framed therein the amount equal to the composite speed post charges could be claimed by the UPSC, Delhi and not by the appellant because he had not spent any amount. On this view of the matter, the complaint had been dismissed. Through the medium of this appeal the order has been challenged mainly on the following grounds- (a) Whether unexplained delay as to the fact that speed post parcel in question remained in RMS Bhawan, Jammu from 10. 8. 2005 to 21. 8. 2005 could not constitute deficiency in service as being negligence or default on the part of the respondents within the meaning of Section 2 (1) (g) of the Act? (b) Whether the transmitted charges paid by the appellant to UPSC for sending parcel in question through speed post could not qualify appellant to become a consumer as defined in Section 2 (d) (ii) of the Act? (c) Whether provisions of Section 6 of the Indian Post Office Act, 1898 and the guidelines and rules made thereunder over-ride the application of the provisions of the Act?

Heard the arguments.

MR. Kapil Verma, Advocate has contended that the "form in question" remained in the Railway Mail Service (RMS) Bhawan, Jammu owned and controlled by the respondents from 10. 8. 2005 to 21. 8. 2005 and this default has not been reasonably explained by them. Such a negligent conduct of the employees of the respondents cannot attract the protection extended under Section 6 of Indian Post Office Act. In order to buttress his arguments the learned Counsel has cited the case of Head Post Office (Post Master) and Anr. v. Basanta Sahoo, IV (2005) CPJ 551, wherein the delivery of the registered letter was delayed and no explanation for the delay had been given by the appellants therein. The respondent therein could not get admission in Post-graduation. Deficiency in service was proved and shelter under the provision of Section 6 of Indian Post Office Act was held not available. The appellant therein was held liable to pay the compensation. Similar view was taken in another case by the same State Commission in the case of Post Master, Head Post Office, Puri and Anr. v. Panchanan Panigrahi, IV (2005) CPJ 150. He has also referred to the case of Senior Superintendent of Post Offices and Ors. v. Bal Krishan and Anr. , III (2001) CPJ 494, wherein also it has been held that protection given under Section 6 of Indian Post Office Act is not available to the Central Government where delay is caused due to fraud, wilful act or default of the postal employees. In other words, where the delay is caused on account of the above stated vices, postal employees as well as the Central Government would be liable to pay the damages. In the instance case the delay has not been explained. Rather, it is proved that it has occurred due to the negligent conduct of the concerned employees. In order to bring the appellant within the definition of a ''consumer'', the learned Counsel has submitted that the "postal transmitted charges" in the amount of Rs. 50 regarding the form in question had been paid by the appellant to UPSC and this amount was a Trust money lying with UPSC to be paid to the postal authorities. This payment may be deemed to have been made by the appellant and not by the UPSC. Stretching his arguments further, he has contended that this was a price for the speed post in question paid to the respondent herein by the appellant and as such the appellant falls within the definition of a ''consumer'' as defined under Section 2 (d) of the Act as the postal services had been hired by him. He thus fulfils the requirements of a consumer both under heads (d) (i) and (d) (ii) of Section 2 of the Act. There is unexplained delay of 11 days by keeping the speed post parcel in Railway Mail Service Bhavan, Jammu and it was a fault and imperfection in the hired service and amounted to "deficiency" as defined under head (g) of Section 2 of the Act. In rebuttal Mr. Harshwardhan, Advocate, has contended that the postal department is not an agent of the sender of an article, which includes speed post parcel. According to him, the Apex Court in the case of Union of India v. Mohd. Nazim, AIR 1980 SC 431, has held that Post Office is not a common carrier and it is not an agent of the sender of the postal article for reaching it to the addressee. Para 8 is very much illucidated. The delay caused by 11 days in the RMS Bhawan was neither intentional nor wilful, so under Section 6 complete immunity had been granted to the department. This speed post parcel was misplaced somewhere and as soon as it was located it was sent to the sender. There is no negligence, fraud or wilful default against any employee of the department and the case is covered under the law laid down by Kerala High Court in the case of T. K. Raghavan v. Union of India, AIR 1988 Ker. 218. The same view has been expressed by the National Commission in the case of Union of India v. Dr. Puran Chandra Joshi, III (2006) CPJ 120 (NC)=2006 (2) JRC 543. Same view was taken by National Commission in Revision Petition No. 15 of 1997 titled Head Post Master, Post Office v. Vijay Aggarwal and connected revision petitions disposed of on 18. 9. 2002. Judgment delivered by the LPA Bench of the Hon''ble High Court of Jandk in LPA No. 166/2001 titled Sunil Gupta v. Union of India and Another, was also referred by the learned Counsel in support of his arguments We have considered the respective contentions of the Counsel of the parties. There is found legal force in the arguments advanced by Mr. Kapil Verma, Advocate for the appellant. On facts it is established that delay of 11 days when the speed post parcel in question remained in Railway Mail Service Bhavan, Jammu has not been explained. An oral explanation rendered by the learned Counsel for the respondents that it could not be located with all efforts does not absolve the OPs from the fault which had been committed in not rendering the hired service in time. The appellants career was at stake and when he could not get the speed post parcel in time he had to rush to Delhi and personally get the requisite form from the concerned office and again had to come to his home and after filling the form personally delivered the same in the office of UPSC, Delhi. Besides that, he had been daily visiting the Sub-Post Office at Kandoli-Nagrota where he resides and thus had undergone great mental torture and suffering as well as the expenses incurred by him for unnecessary taking the journey. The payment made by him of Rs. 50 in the office of UPSC for the transmission of the required "form" was of the nature of an entrustment and subsequently payment was made by UPSC being a trustee to the OPs. It can by all means of imagination be deemed as a price for hiring the service of speed post for the delivery of the parcel in question. The appellant fulfilled the qualification of a "consumer" as defined under Sections 2 (d) (i) and 2 (d) (ii) of the Act. Since there was wilful fault and imperfection in rendering the hired service on the part of the OPs so that amounted to deficiency in service as defined under head (g) of Section 2 of the Act. The law cited by learned Counsel appearing for the OPs undoubtedly is good law but has no application to the facts of the case in hand. The Apex Court in the case of Union of India v. Nazim Mohd, (supra) has dealt with the aspect that a Post Office is not an Agent of sender of article. That case has been settled under Section 6 of the Post Office Act. The present case falls within the ambit of the Jandk C. P. Act which is an additional remedy available to a bona fide consumer for not rendering to him hired service in a normal manner. In the present case, delay of 11 days has been proved as wilful and this was a fault and imperfection in rendering the service and fell outside the ambit of statutory protection guaranteed under Section 6 of the Post Office Act. All the cases cited by the learned Counsel of the respondents have dealt with the aspect of particular cases where the default was not wilful. The ratio decidendi of all cases has no application to the facts of the present case and thus all those decided cases are of no help to the OPs.

IN view of the discussion made above, we find merit in this appeal which is accepted and the respondents are directed to pay compensation to the appellant in the sum of Rs 50,000 (Rupees fifty thousand) for mental harassment, agony as well as the financial losses suffered by him. He is also entitled to a sum of Rs. 5,000 (Rupees five thousand) as litigation charges. The record of the Divisional Forum be returned and the appeal be consigned to the records. Appeal allowed.