Chetan Dass Batra vs UNION OF INDIA

REVISION Petition No. 3113 of 2010 has been filed against the order dated 15.4.2010, passed by Haryana State Consumer Disputes Redressal Commission, Panchkula (short, "State Commission") in First Appeal No. 2261 of 2003. The brief facts of the case as per Petitioners/Complainants are that the petitioner had sent application Nos. 19108 and 19109 along with Bank Draft dated 25.6.1999 of Rs. 37,298 and 37,298 respectively to the Respondent No. 3/opposite party No. 3 for allotment of residential plot in Sector - 9/9A.

THE names of petitioners were not in the draw of plots and as such the respondent No. 3 has sent the said amount of Rs. 37,298 and Rs. 37,298 vide receipt No. 2447 dated 12.6.2000 and No. 2433 dated 12.6.2000 to the petitioners through respondent No. 2 under respondent No. 1 but till today the said drafts have not been received by the petitioners. On 3.8.2000, the petitioners went to respondent No. 2 along with letter dated 28.7.2000 written by respondent No. 3 but the respondent No. 2 stated that there are no registered envelope in their possession sent by respondent No. 3. The said envelopes containing cheque of the abovesaid amount were sent by respondent No. 3 on the expenses of petitioner but the same were illegally delivered to some other person by respondent No. 2. The petitioners have not received the said letters.

THE petitioners sent a notice to the respondent through their Counsel but the respondents have not replied the same nor has the respondent No. 3 issued duplicate drafts.

THE petitioners have suffered great mental tension as the said letters have been illegally delivered by respondent No. 2 to some other person and the respondents are well in knowledge of the same. The said act on the part of respondents amounts to deficiency in service. It was therefore prayed that the respondent be directed to pay to petitioners amounts of Rs. 37,298 and 37,298 along with interest thereon and also pay another amount of Rs. 30,000 on account of unnecessary harassment, mental tension and litigation expenses.

IN written reply, respondent Nos. 1 and 2 stated, as under: • The contents of this para are admitted to the extent that the respondent No. 3 has sent two envelopes under registered letter Nos. 2447 dated 12.6.2000 and 2433 dated 12.6.2000 addressed to the complainant from Head Post Office, Bahadurgarh. Rest of the para is denied for want of knowledge. The Department of Posts accepts closed envelopes and has no knowledge about the contents of envelope for the purpose.

• The contents of this para are totally wrong hence denied. The said registered letter was not delivered to any person as per inquiry conducted and revealed that the said articles were received in Kanpur RMS on 14.6.2000 for dispatch to destination but the disposal of both articles are not traceable and the same were not received and reached in the office of respondent No. 2.

• The contents of this para are admitted to the extent that the notice for conducting inquiry into the matter has received through Counsel of complainant in this office and the inquiry was conducted as mentioned in para. No. 3. The rest of the para relates to respondent No. 3.

• The contents of this para are wrong hence denied. The said articles were not delivered to any person which were misplaced/lost from Kanpur RMS. The sender/respondent No. 3 may be granted compensation Rs. 100 per article being delay/loss or damage to any postal regd. article in course of transmission by post if claimed by the sender of the article as per (Clause 163 of P.O. Guide Part -I Rule 81 of Post Office Man. Vol. III) under certain conditions but not in consequence of legal liability. Hence, the complaint is not maintainable against respondent No. 2.

REPLY to the written statement on behalf of respondent No. 3 filed before District Consumer Disputes Redressal Forum, Jhajjar (short, ''District Forum'') stated as follows: That para. No. 1 of the complaint is admitted. The earnest money worth Rs. 37,298 and Rs. 37,298 received with application Nos. 19108 and 19109 dated 25.6.1999 from Shri Naresh Kumar and Chetan Dass respectively have been deposited in the Bank and after consolidation all the applications were sent by H.Q. for scrutiny to this office, after the scrutiny the draw was held on 30.3.2000 and 31.3.2000. The allotment letter was issued to the successful applicants and the refunds were made to the unsuccessful applicants. The complainants remained unsuccessful draw of lots held on 30.3.2000.

That in reply to para. No. 2 of the complaint, it is submitted that the refund of earnest money deposited by the complainants were made vide cheque Nos. 7433 and 3793 dated 31.5.2000 to the applicants through registered post at the address given by the complainants in their key folder/applications (Photocopy of General Registry).

That in reply to para. No. 4 of the complaint, it is submitted that this office has made request to the Oriental Bank of Commerce, Mani -Majra, to enquire about cheques in question were encashed or not. If encashed the name of Bank may please be intimated. As per correspondence, the Bank has intimated the name of Kanpur Akishtria Gramin Bank, Kanpur, U.P. where the said cheques were encashed. After receiving this information, this office made correspondence at the male address of the Bank in Kanpur, UP as a result the Bank Authority intimate the names of person who had got encashed the cheques and also intimated the name of introducer. The Kanpur Akishtria Gramin Bank intimated that the cheques were got encashed by Shri Naresh Kumar Batra and Shri Chetan Dass Batra sons of Shri Din Dayal Gupta, R/o. 381 -K -12 -Om Purwa, Kanpur at the time of opening of Bank accounts. Thereafter, this office requested to Senior Superintendent of Police for lodging of FIR against the persons who have got encashed the said cheques wrongfully vide this office Memo No. 2802 dated 11.5.2001.

Based on the above, District Forum vide order dated 26.8.2003 ordered that - - After going through the file and hearing the parties, we are of the considered view that the draw of plots was held by the HUDA on 30/31.3.2000 and the Name of the complainants was not in the list of successful candidates. The earnest money which was deposited by the complainant was sent by the respondent No. 3 on dated 31.5.2000 on the address mentioned in their application form under registered cover but the same was not received by the complainants. The same was lost or misappropriated in Kanpur Post Office and the cheques of the alleged amount were encashed in the Kanpur Akishtria Gramin Bank due to the negligence of postal department because the registered cover was not delivered by the postal department to the real addressee/complainants.

Keeping in view the facts and circumstances of the case, we come to the conclusion that the earnest money of Rs. 37,298 and Rs. 37,298 deposited by the complainants was refunded by the respondent No. 3 through cheques under registered cover but the same was not received by the complainants. The alleged cheques were mis -appropriated and were encashed in Akshetria Gramin Bank, Kanpur (UP). As per Rule 177 of Post Office Guide, the Postal Department is not liable for the precious articles without insurance but the registered cover is not covered under the definition of precious articles under Section 177 of "Letter and Parcel Dak" of Post Office Guide. The registered cover was not delivered by the postal department to the real addressees. Whereas, it should be delivered to the real addressees. This is the best possible slackness on the part of the Postal Department and they are liable to pay the alleged amount to the complainants. Complainants have successfully established deficiency in service on the part of the respondent Nos. 1 and 2. We hereby allowed the complaint by giving the direction to the respondent Nos. 1 and 2 to pay the amount of Rs. 37,298 (Thirty seven thousand two hundred and ninety eight only) to complainant No. 1 Chetan Dass and Rs. 37,298 (Thirty seven thousand two hundred and ninety eight only) to complainant No. 2 Naresh Kumar along with interest @ 9% p.a. from the date of dispatch of registered cover by HUDA i.e. 31.5.2000 till its realization. Rs. 5,000 (Five thousand only) be awarded to the complainants as compensation and Rs. 1,000 (One thousand only) as litigation charges. Order shall be complied within one month from the date of decision.

AGGRIEVED by order of the District Forum, respondent Nos. 1 to 3 filed an appeal before the State Commission. Vide order dated 15.4.2010, State Commission accepted the appeal and passed the following order: The facts and circumstances of the present case are fully attracted to the case law cited above and as such the impugned order under challenge is not sustainable in the eyes of law. There is no cogent, convincing and corroborating evidence on record to establish any willful act or default for not delivering the postal articles at the destination and as such the impugned order under challenge is not sustainable in the eyes of law. The District Forum has not given due consideration to the factual position on record.

For the reasons recorded above, this appeal is accepted, the impugned order is set aside and the complaint is dismissed.

HENCE , the revision petition. The main grounds for revision petition are that: B. Because the lodging of the complaint by the respondent No. 3/HUDA before the Police Authorities is an admission to the fact that the said cheques/demand drafts have not been received by the petitioners, the actual addressee. The factum of the said cheques/demand drafts having been misappropriated and encashed by fictitious persons has been admitted by the respondent No. 3/HUDA. Therefore, the respondent No. 3 has committed a gross deficiency in service towards the petitioners.

C. Because the respondent No. 2 had stated and admitted in its reply that the alleged letters/envelopes containing the said cheques/demand drafts were not delivered to the real addressees i.e. the petitioners and as per inquiry it revealed that the postal articles were received at Kanpur RMS on 14.6.2000 for despatch to destination but disposal of those articles was not traceable. Under these circumstances, no further evidence is required to prove on record that the postal department had not delivered the postal articles at the correct address. By their act, the respondent No. 2 has deprived the petitioners of their valuable money which they are legally entitled to. Therefore, the learned District Forum has rightly held the postal department i.e. respondent Nos. 1 and 2 liable to make the payments of the amounts of the cheques/demand drafts to the petitioners.

F. Because the respondents are jointly and severally liable to pay to the petitioners the amount of the demand drafts along with accrued interest thereon with the other benefits as allowed by the learned District Forum. The dispute between the respondents inter se could be settled in some other proceedings but the petitioners could not be deprived of their valuable money under the present proceedings.

WE have heard learned Counsel for the petitioner and respondent Nos. 1, 2 and 3 and carefully gone through the record of the case.

IT is an undisputed fact that the draw of plots was held by HUDA on 30.3.2000 and the names of the petitioners were not on the list of successful candidates. The earnest money which was deposited by the petitioners had been refunded by respondent No. 3 vide cheque Nos. 7433 and 3793 dated 31.5.2000 by registered post at the address given by the petitioners in their applications. It is also an undisputed fact that the Kanpur Kshetriya Gramin Bank has informed respondent No. 3 that the said cheques were encashed by Shri Mool Chandra Batra, Shri Chetan Das Batra and Shri Naresh Kumar Batra, all residents of 98 -A, Chandra Nagar, Harjinder Nagar, Kanpur -7 (UP). The introducer was Mr. Triloki Nath Gupta, resident of 381, K -12, Ompurwa, Kanpur. It is also an undisputed fact that after conducting an inquiry, respondent No. 2 has confirmed that both the registered letters were received in Kanpur, RMS dated 14.6.2000 but the disposal of the said articles was not traceable. Hence, it is not the case of respondent No. 2 that the said registered letters were lost in transit but it was confirmed that they have received the said letters in Kanpur, RMS and were not traceable, thereafter. Later events show that the cheques contained in the registered letters were encashed thereafter by the account holders mentioned above.

DISTRICT Forum after going through the record carefully and hearing the parties had come to the conclusion that there was deficiency in service on the part of respondent Nos. 1 and 2 and hence, they were liable to pay the alleged amount to the petitioners and had ordered that the amount of Rs. 37,298 be paid with interest @ 9% p.a. from the date of despatch of registered cover by respondent No. 3 i.e., from 31.5.2000 till realization to each of the petitioners. It also awarded Rs. 5,000 to the petitioners and Rs. 1,000 as litigation charges.

WE do not agree with the reasoning given by the State Commission. It is not known as to on what basis the State Commission has come to the conclusion that respondent Nos. 1 and 2 would not be guilty of "any willful act or default for not delivering the postal articles at their destination". Further, no such facts have said to have emerged from any inquiry held by respondent Nos. 1 and 2 or by the Police to exonerate respondent Nos. 1 and 2. Respondent Nos. 1 and 2 have to be held accountable for registered letters entrusted to their custody for its safe delivery. This is not the case of ordinary letter posted in a letter box. Though, it has been mentioned that an inquiry was held by respondent Nos. 1 and 2 with regard to misplaced registered letters, the result thereof have not been placed on record except that the said letters are not traceable at Kanpur, RMS. An enquiry is meant also to fix responsibility for failure and deficiency of service in non -delivery of the letters to the addressee and to safeguard the property entrusted to them and their safe delivery.

IN view of the above facts and circumstances, the revision petition is allowed and the order of the State Commission is set aside and the order of the District Forum is upheld.

RESPONDENT Nos. 1 and 2 will also pay a cost of Rs. 20,000 (Rupees twenty thousand only). Rs. 5,000 (Rupees five thousand only) to be paid by way of demand draft in the name of each of the petitioners and further Rs. 10,000(Rupees ten thousand only) to be deposited in the "Consumer Legal Aid Account" of this Commission, within four weeks from today. In case, respondent Nos. 1 and 2 fail to pay/deposit the said cost within the prescribed period, then they shall also be liable to pay interest @ 9% p.a., till realization. List on 4.4.2014 for compliance.