Devi Engineering Co vs UNION OF INDIA

THIS Revision Petition has arisen out of a complaint filed by the respondent -herein before the District Forum, Krishna at Machillipatnam seeking to recover a compensation of Rs. 20,000 / - from the Union of India represented by the Senior Superintendent of Post Office, Vijayavada on the ground that an envelope containing two demand drafts for Rs, 10,000/ - drawn on Syndicate Bank despatched by him from the Post Office at Vijayavada by Registered Post on 6.4.1992 addressed to Conico Radio Corporation, Chandni Chowk, Delhi was not delivered to the addressee and he has subsequently come to know from the Syndicate Bank that the amounts covered by those Demand Drafts were paid by the drawee Branch on 10.4.1992 to some third party. The District Forum allowed the complaint and directed the opposite party to pay a compensation of Rs. 20,000/ - to the complainant with interest. On an appeal preferred by Union of India before the State Commission, Andhra Pradesh, the State Commission upheld the plea of the appellant that in view of the provisions of Section 6 of Indian Post Office Act, the opposite party could not legally be made liable for payment of any compensation. The District Forum had not considered the plea which had been raised before it based on Section 6 of the Indian Post Office Act. In support of its conclusion that the claim for compensation was not maintainable in view of the provisions of Section 6 of the Indian Post Office Act, the State Commission relied on the decision of this Commission in the Presidency Post Master and Aw. v. Dr. U. Shanker Rao, II (1993) CPJ 141 (NC). Aggrieved by the order of the State Commission dismissing the complaint the complainant has preferred this Revision Petition. Section 6 of the Indian Post Office Act reads : "The Government shall not incur any liability by reasons of the loss, mis -delivery or delay or damage to, any postal article in course of transmission by post, except in so far as such liability may in expressed terms be undertaken by the Central Government as hereinafter provided, and no office of the Post Office shall incur any liability by reasons of any such loss, mis -delivery, delay or damage, unless he has caused the same fraudulently or by his wilful act or default". In Presidency Post Master & Anr. v. Dr. U. Shankar Rao (supra) which has been relied upon by the State Commission, this Commission by a composite order disposed of two Revision Petitions namely R.P. Nos. 175 & 247 of 1992 which involved similar points. The facts of the case which gave rise to R.P. No. 247 of 1992 are almost identical with those that are before us in the present case.

IN R.P. No. 247 of 1992 the complainant had sent a consignment of hand loom towels to M/s. Renuka Hosiery, Calcutta through Economic Roadways Corporation and he sent the original lorry receipt relating to the said consignment from the Post Office at Sellur to the Syndicate Bank, Calcutta by Registered Post with acknowledgement due. The Acknowledgement Slip was not received back by the complainant. It was latter learnt by him that the registered letter was not delivered to the Bank and that some other person had taken delivery of the consignment from the transporter on the basis of the original lorry receipt. The complainant thereupon approached the District Forum seeking to recover a compensation of Rs. 3,500/ - from the Postal Department for non - delivery of the registered envelope and its contents. The District Forum allowed the complaint and directed the Postal Department to pay the amounts claimed by the complainant. An appeal filed by the Postal Authorities was dismissed by the State Commission, Tamil Nadu confirming the decision of the District Forum. On the matter being brought up before this Commission in the Revision Petition filed by the Postal Department, this Commission in paragraph 11 of its order extracted Section 6 of the Indian Postal Office Act and held that the complaint was not maintainable in view of the clear mandate of Section 6 "that the Government shall not incur any liability by reasons of the loss, mis -delivery, or delay or damage, to any postal article in course of transmission by post...". The said decision has been subsequently followed by this Commission in a number of other cases. The framers of the Act must be taken to have been fully aware of the terms of Sections 28 and 29 of the Act which provide for registration of postal articles on payment of extra charges but nevertheless they have not made any distinction in Section 6 between articles sent by ordinary post and those sent by Registered Post. On the other hand, the wording of the earlier part of Section which confers immunity against liability is quite general and it is comprehensive enough to take in all cases of loss, mis -delivery, or delay or damage, to any postal article in the course of transmission by post, the only exception mentioned in the section being in respect of cases where any such liability has been undertaken in expressed terms by Central Government in the manner subsequently provided in the Act itself.

IT is noteworthy that the last portion of Section 6 where reference is made to loss, misdelivery etc. caused fraudulently or by wilful act or default has relation only to the personal liability of an individual "officer of the Post Office" who may have been responsible for such fraud/wilful act or default. There is no allegation in the present case that the loss or misdelivery occurred on account of fraudulent or wilful act of any particular postal employee.

SUCH being the position, we hold that the principle laid down by this Commission in the decision aforecited - The Presidency Post Master & Am. v. Dr. U. Shankar Rao (supra) governs this case and the order of the State Commission dismissing the complaint has only to be upheld. Accordingly, we dismiss this Revision Petition. The parties will bear their respective costs. As per Minority : Mr. S.P. Bagla, Member -The complaint of the respondent before us is in regard to delivery of a postal cover allegedly containing two demand drafts of Rs. 10,000/ - each drawn on Syndicate Bank to have been wrongly delivered to a person other than the addressee, who had them encashed and thus caused a loss to the respondent herein. The District Forum allowed the complaint and directed the Postal Department to pay Rs. 20,000/ - with interest. However, the State Commission accepted the appeal of the Postal Department and set aside the order of the District Forum keeping in view of the provisions of Section 6 of the Indian Post Office Act. 7. The issues for consideration in this complaint are mainly two : (a) whether the Postal Department renders a service to the sender of postal article, for which special charges are secured, and a regular record is kept of receipt transmission, discharge and delivery, as distinguished, from the ordinary mail for which neither any special charge is levied and obtained nor any record of the postal article is kept; and (b) if such an act of the Postal Department is within the purview of the definition of ''service'' under the Consumer Protection Act, 1986 can compensation be awarded for any deficiency in the discharge of its duties. 8. This Commission while deciding The Post Master, Station Kachignda H.P.O. & Ors. v. G. Hanumantha Reddy, Revision Petition No. 363 of 1993 held that "in our opinion Section 6 of the Indian Post Office Act will not operate to preclude claims for compensation being made against the Postal Department for non -delivery of articles despatched by Speed Post". The argument behind this opinion was that "while accepting letters and articles for transmission by speed post the Postal Department has undertaken to deliver the articles within the specified period of time and in consideration thereof a substantial extra charge is levied". The distinguishing features of the speed post from the ordinary mail, therefore, were : (a) a substantial charge for that service, and (b) an undertaking to deliver the articles within the specified period of time. Putting this test to a registered postal cover, I find that both these conditions are fully satisfied in the case of a registered postal article, in the same manner and to the same extent, as for the speed post. While accepting a registered postal article, the Postal Department gives a receipt after charging a fairly substantial amount for delivering it to the addressee from whom an acknowledgement is also to be obtained. A record of receipt, movement and delivery is kept by the Post Office in respect of a registered postal article and it is for this special work, as distinguished from an ordinary mail letter, that the Department makes a special charge and obtains it as a consideration for the special service to be rendered by it. I am, therefore, of the view that the registered postal article is also within the ambit of service under the Consumer Protection Act on the same grounds as a speed post article, and, therefore. Section 6 of the Indian Post Office Act should not operate to preclude claims for compensation being made against the Postal Department in respect of a registered postal article. 9. In another case, in Superintendent of Post Offices and Ors. v. Upovokta Surakshya Parisad, Revision Petition No. 799 of 1995 reported in III (1996) CPJ 105 (NC) this Commission dealt with the scope of Section 6 of the Indian Postal Act for a delayed delivery of a letter containing an intimation for admission to an educational institution, thus causing the loss of an academic year to the addressee, and held that the Postal Department cannot claim immunity for such an act under the said section. For facility of reference. Section 6 under which the Postal Department has been claiming absolute immunity for deficiency in service is reproduced. "Section 6 : The Government shall not incur any liability by reasons of 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 wilful act or default". 10. A misdelivery of a registered postal article could be by inadvertance, carelessness or as a deliberate act. However, as the address of the addressee is also put on a separate slip of a paper and attached to the registered postal article and the signature of the addressee by way of acknowledgement of receipt of such an article, is obtained by the postman who delivers it, it should not be impossible to locate the person to whom such a registered postal article is mis - delivered, if an effort is made by the Department after receiving a complaint of the nature with which we are concerned in this Revision Petition. It may be that even after such an effort, the person to whom a registered postal article is misdelivered is not identified, for more than one reason, but not making even an effort is surely an act of Will. Wrong delivery, as I have mentioned, could be caused by sheer carelessness, which in my view is also an act of Will, in the sense that the postman does not perform his duty as carefully as expected. The ''Will'' in such cases is indeed difficult to prove in a hyper -technical sense. And, precisely because of that, this Commission in Revision Petition No. 799 of 1995 held that "not doing something what one ought to do is also an act of Will and, therefore, covered by wilful act" as mentioned in Section 6 as one of the circumstances where the liability can be fixed on the Postal Department and its functionaries. 11. From a perusal of the record of this case, I find that the Department has not indicated anywhere of any effort made by them to locate the person to whom the envelope containing two Bank drafts was mis -delivered and was encashed by that person thus causing loss to the complainant. The Postal Department has simply, in a very casual manner, invoked immunity under Section 6 of the Indian Postal Act. I am, therefore, of the considered view that such a gross casualness in serving the consumers, who pay additional charges to send their important documents and valuable Bank instruments by registered post, shows the "Will" of the Department for not doing what it ought to do in such circumstances. Moreover, in the present system of governance, as distinguished from the colonial system when the Indian Postal Act was enacted in the year 1890, public functionaries rendering service to the people for consideration should be made accountable. 12. As it is not possible for me to determine whether the envelope sent by the sender did contain the Bank drafts, and if so, for what amount, because it requires an appreciation of the evidence to be led by the respondent, which matter, can be more appropriately dealt with by a competent Civil Court, I am not taking any view in this regard leaving it to him to agitate the matter in a competent Civil Court. However, the fact of gross deficiency in service for not making an attempt to locate the person to whom this envelope was wrongly delivered should not be ignored for the reasons given in the preceding paragraphs. For this deficiency in service, I direct the Postal Department to pay a compensation of Rs. 2,000/ - to the respondent. There is no order as to costs. Dr. (Mrs.) R. Thamarajakshi, Member - While broadly agreeing with my learned colleague Shri S.P. Bagla, I would like to make the following observations : 14. In the majority order, it has been mentioned. "The framers of the Act must be taken to have been fully aware of the terms of Sections 28 and 29 of the Act which provide for registration of postal articles on payment of extra charges but nevertheless they have not made any distinction in Section 6 between articles sent by the ordinary post and those sent by Registered Post". Sub -section (3) of Section 29 of the Indian Post Office Act reads as under : "Postal articles made over to the Post Office for the purpose of being registered, shall be delivered, when registered, at such times and in such manner as the Director General may, by order, from time to time appoint". The word "shall" here makes delivery of a registered letter mandatory. In R.P. 363 of 1993, this Commission had distinguished speed post from ordinary mail in terms of : (i) an undertaking to deliver the article within a specified period of time, and (ii) substantial extra charges received for the service. Both these aspects are fulfilled in the case of registered post also; there is an averment on the part of the Department that it ''shall'' deliver the registered post and extra charges are collected for the same. This being the situation, there is no reason to treat registered post on a different footing. Hence, the bar under Section 6 will not apply to registered post also and it is open to the aggrieved party to put forward a claim for compensation. Petition dismissed. -