Economic Transport Organisation vs NORTHLAND ENGINEERING INDUSTRIES

THESE two appeals, i.e. Appeal Nos. 22 of 2000 and 2 of 2000 have been directed against one and the same order dated 8.12.1999 passed by the District Forum-II, U.T., Chandigarh in Complaint Case No. 1229 of 1994. The respondent in both the appeals is the complainant-Northland Engineering Industries, 368, Industrial Area, Chandigarh. The complaint was filed through its partner Shri S.K. Jain. The opposite parties impleaded in the complaint case were Post Office, Phase-I, Industrial area, Chandigarh through its Post Master; U.O.I. through the Superintendent of Post Officer, Chandigarh-20, M/s. Economic Transport Organisation, 22, Transport Area, Chandigarh through its Manager and Economic Transport Organisation, No. 36/1, Punjabi Bagh, New Delhi through its Managing Director. The facts giving rise to these appeals may, briefly, be narrated as under : The complainant-Northland Engineering Industries booked one consignment with M/s. Economic Transport Organisation, the appellant in Appeal Case No. 2 of 2000. The said consignment was to be delivered to M/s. P.C. Electric Company, Calcutta. The complainant paid transport freight charges which amounted to Rs. 330/-. The agent of opposite party Nos. 3 and 4 were required to deliver the goods consigned to the consignee M/s. P.C. Electric Company, Calcutta, after receiving the documents which were to be discharged by the Punjab National Bank, Brabourne Road, Calcutta after due process and endorsement in favour of the consignee M/s. P.C. Electric Company. The necessary documents were sent through the opposite party No. 1, i.e. Post Office under registered cover vide postal receipt bearing No. 1854 dated 1.3.1994. A copy of the said postal receipt was annexed with the complaint as Annexure C-2. It was averred in the complaint that Mr. N. Chakroborti, Calcutta based representative of the complainant-Northland Engineering Industries informed the complainant on telephone on 31.3.1994 that the documents which were sent through the postal-agency of opposite party No. 1 had not been delivered to the Punjab National Bank, Brabourne Road, Calcutta by that time. Thereafter, the complainant-firm informed the consignee M/s. P.C. Electric Company, Calcutta vide letter dated 2.4.1995. A photo-copy of the said letter was also annexed with the complaint as Annexure C-3. The complainant-firm wrote a letter dated 9.4.1994 to the opposite party No. 1-Post Office asking about the position regarding the delivery of the letter sent under registered cover to the Punjab National Bank, Brabourne Road, Calcutta. The consignee M/s. P.C. Electric Company in the meantime requested the complainant-firm to send bond, as the document had not reached the said Bank. This letter is dated 12.4.1994 and its copy was annexed as Annexure C-5 with the complaint. Thereafter, the complainant-firm sent a letter dated 23.4.1994 to the Manager, Punjab National Bank, Calcutta containing the indemnity bond addressed to the transporters alongwith the copy of the document. The copy of this letter has been annexed as Annexure C-6 with the complaint. The complainant-firm, however, learnt that the consignment aforesaid had been delivered to someone else other than the consignee M/s. P.C. Electric Company. The opposite party No. 2 M/s. Economic Transport Organisation, Chandigarh had also asked for requisite information regarding disposal of the articles vide letter dated 7.7.1994 vide copy annexed with the complaint as Annexure C-8. The said letter was replied by the complainant-firm vide its letter dated 15.7.1994, copy of which has been annexed with the complaint as Annexure C-9. It has been contended that no action was taken by the opposite party No. 2 aforesaid. The complainant also wrote a letter to the Director of General Post Office, Calcutta on 1.8.1994 copy Annexure C-19 which was followed by a reminder dated 5.9.1994 copy Annexure C-11. The Director, General Post Office, Calcutta asked the complainant-firm vide letter dated 19.9.1994 to take up the matter with the office of booking at Chandigarh, as the registered letter under reference "was not traceable to have been delivered at their end". The copy of the letter annexed with the complaint is Annexure C-12. The complainant-firm sent a copy of C-12 to the opposite party No. 2 vide letter dated 30.9.1994 for necessary action. A copy of this letter has also been annexed as Annexure C-13 with the complaint. Since no action was taken by the opposite party Nos. 1 and 2, the complainant-firm filed the said complaint alleging that the opposite party Nos. 1 and 2 were negligent in delivering the registered envelop containing the original documents to a wrong person other than the bankers, i.e. Punjab National Bank, Calcutta and opposite party Nos. 3 and 4, i.e. M/s. Economic Transport Organisation, Chandigarh and Economic Transport Organisation, New Delhi were negligent as their agent at Calcutta delivered the said consignment to unknown person other than M/s. P.C. Electric Company, Calcutta. It was also averred that the agent of the opposite party Nos. 3 and 4 had the address of the consignee M/s. P.C. Electric Company, Calcutta as one copy of the invoice was handed over to opposite party No. 3 at the time of booking of the consignment. The grievance of the complainant was that neither the agent of opposite party Nos. 3 and 4 bothered to enquire from the Bank nor the person was verified who took the consignment by producing the documents which he claimed to have received and after affixing a false stamp and endorsement of the Bank. The complainant-firm prayed that a sum of Rs. 25,211.28 P. with interest @ 18% per annum from the date of booking of consignment, i.e. 26.2.1994 till realisation be awarded to him.

AFTER the service of the notices, two sets of replies were filed. The first set of reply was filed on behalf of opposite party Nos. 1 and 2, i.e. Post Office, Phase-I, Industrial Area, Chandigarh and Union of India through the Superintendent of Post Office, Chandigarh. The opposite party Nos. 1 and 2 took the preliminary objection that the complaint was not maintainable against them in view of the specific provisions contained in Section 6 of Indian Post Office Act, 1898. It was however admitted that the registered letter was booked with opposite party No. 1-Post Office, Industrial Area, Chandigarh vide Receipt No. 1854 dated 1.3.1994. It was contended that the matter regarding the non-delivery of the registered letter to the Punjab National Bank, Calcutta was under investigation. In the written statement, a reference was made to the judgment of the Hon''ble National Commission in Review Petition No. 175 of 1992, The Presidency Post Master & Anr. v. Dr. U. Shanker Rao; and No. 247 of 1992, Senior Superintendent, Post Office v. Consumer Rights Protection Council, decided on 15.4.1993. The opposite party Nos. 3 and 4 filed a separate reply wherein it was admitted that the opposite party/complainant had booked the consignment under reference. They, however, contended that it was the complainant who dispatched the documents through registered post at his own responsibility through Post Office to the concerned Bank. They further contended that the consignee after having making the payment of the consignment to the concerned Bank got retired the original and produced the same before the opposite party Nos. 3 and 4 who after verifying the original consignee copy, released the goods to the consignee with proper acknowledgement. They further contended that once delivery to the concerned party stood effected at their destination, the responsibility of the opposite party Nos. 3 and 4 as carriers came to an end. They denied their liability in the case and contended that the complainant had got no cause of action against them. It was also averred that the complaint was filed with mala fide intention just to harass the opposite party Nos. 3 and 4. The complaint was also bad due to mis-joinder and non-joinder of parties.

The District Forum received the evidence led by the complainant-firm as well as the opposite parties and after hearing the complainant and the opposite parties held that the appellants of Appeal No. 22 of 2000, i.e. opposite parties, i.e. Post Office and Union of India through Superintendent of Post Office were not protected from any action under the Consumer Protection Act by the provisions contained under Section 6 of the Indian Post Office Act. The Forum recorded a finding that the non-delivery of registered articles to the addresses is by itself an act of grave deficiency in service and more particularly when it has occasioned loss to the complainant.

THE plea of the opposite party Nos. 3 and 4 who are the appellants in Appeal No. 2 of 2000 was also repelled and they were held liable to pay the amount claimed by the complainant as they were negligent in verifying the genuineness of the person taking the delivery of the consignment. Resultantly, the complaint was allowed with costs of Rs. 1,100/- and the opposite parties were directed jointly and severally to pay Rs. 25,211.29 P. to the complainant alongwith interest at the rate of 12% p.a. w.e.f. 1.4.1994 till payment. THE Forum further said that the period upto 31.3.1994 has been exempted for interest as reasonable period during which the complainant would have received the payment in normal course. As referred to above, the opposite parties felt aggrieved against the order passed by the District Forum and filed two appeals, i.e. Appeal Case No. 22 of 2000 and No. 2 of 2000, which are being decided by this common judgment.

WE have heard the learned Counsel for the appellant in both the appeals as well as the learned Counsel for the complainant-respondent. WE have also carefully perused the order of the District Forum. The learned Counsel Mr. G.C. Babbar, Advocate appearing for Post Office and Union of India drew our attention towards the provision of Section 6 of the Indian Post Office Act and contended that Union of India can under no circumstances be held liable for any loss or damage of the goods/articles booked and registered with the Post Office. He also contended that the Post Office could not equated with a common carrier. Before referring to the case law cited by the learned Counsel for the appellant, it will be useful to note the provision of Section 6 of the Indian Post Office Act. Section 6 of Indian Post Office Act reads as follows : "The Government shall not incur any liability by reasons of the loss, mis-delivery or delay or damage to, and 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."

Section 6 came up for consideration before the Hon''ble National Consumer Disputes Redressal Commission in the case of The Presidency Post Master & Anr. v. Dr. U. Shanker Rao, reported in II (1993) CPJ 141 (NC), and it was held in para 11, inter alia, as under : "Under the scheme of the Act the claim for compensation will lie at the instance of the consumer only if there is deficiency in service. According to the revision petitioners the statutory protection to the Central Government which is in absolute terms stands as an except to the general law relating to the commercial carriers, Post Office is a branch of public service functioning under a statute and liability of mis-delivery or late delivery of an article can be fastened on the Postal Department or its officers only on the basis of express provisions of the Post Office Act. The services rendered by the Post Office are merely statutory and there is no contractual liability. Establishing the Post Offices and running the postal service the Central Government does not engage in commercial transaction with the sender of the article through the post and the charges for the article transmitted by post is in the nature of charges imposed by the State for the enjoyment of the facilities provided by the Postal Department and not in consideration of any commercial contract. The Post Office cannot be equated with a common carrier."

IN the case of The Post Master, Imphal v. Dr. Jamini Devi Sagolband, reported in I (2000) CPJ 28 (NC), the Hon''ble National Commission considered the provision of Section 6 of the INdian Post Office Act and held, inter alia, as under : "The section very clearly lays down that 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 provided by the statute 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 of default. There are some provisions in the Act where specifically Government has been made liable to pay compensation for the lost postal articles. For example, Section 33 categorically says that subject to such conditions and restrictions, Central Government shall be liable to pay compensation for insured postal article. But where there is no such specific provision in the Act for payment of compensation, Section 6 grants complete immunity to the Government for liability for loss, mis-delivery, delay or damage to the postal articles. The second part of Section 6 deals with individual liability of the postal employees but statutes that 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. IN this case there is no allegation that the Post Master or the Director or the Director General was guilty of fraud or wilful act or wilful default which led to non-delivery of the postal article. An officer of the Post Office may be held liable for any loss, mis-delivery, delay or damage by some fraudulent act or wilful act or default. IN other words, the person who has committed the offence can be sued for damage but no action will lie against either the Central Government or any of its officers vicariously that postage stamps have to be affixed but that is for augmentation of Government revenue. It is not in the nature of a price paid for the service. This principle was stated by Lord Mansfield in an English case as early as in the year 1778. The principle stated by Lord Mansfield in his judgment in Whitfield v. Lord Le Despencer, (1778) 98 E.R. 1344, in which it was held ''a case does not lie against the Postmaster General for a Bank note stolen by one of the sorters out of the letter delivered to the Post Office''. IN the course of this judgment Lord Mansfield rejected the comparison sought to be made between a postman and a carrier or the master of a slip Lord Mansfield''s judgment was cited and relied upon by the Court of Appeal in the case of Triefus and Co. Ltd. v. Post Office, (1957) 2 All England Reports 387. It has to be borne in mind that this judgment was given after the Old Post Office Act was repealed and replaced by a New Act called Post Office Act, 1953 in England. The Court of Appeal pointed out that the basic principle stated by Lord Mansfield has remained unchanged under the new Act. It was observed by Hodson, L.J., that there was an underlining principle involved in these cases. The Post Office does not accept a postal packet for transmission by post except under and subject to the provisions of Post Office Act and the regulations made thereunder. After a review of the case laws and the provisions of the Post Office Act, 1953, it was ultimately held by Hodson, L.J., ''For these reasons, in my opinion, the learned Judge was right. No contract was entered into between the appellants and the Post Office''."

IN the instant case, there is no averment made in the complaint regarding any fraud, wilful act or default committed by any officer of the Post Office. IN the absence of any such allegation, the Post Office and the Union of INdia through the Superintendent of Post Office cannot be held liable for loss, mis-delivery, delay or damage to a postal article in the course of transmission. The learned Counsel for the respondent-complainant was unable to cite any other authority vide which the liability could be fastened on the appellants, i.e. Post Office and Union of INdia, particularly in the face of specific provision of Section 6 of the INdian Post Office Act. We are thus of the considered view that the District Forum was in error in law in fastening liability of the appellants of Appeal No. 22 of 2000, i.e. Post Office and Union of INdia in. The appeal filed by the Post Office and another has considerable merits and it deserved to be allowed and the order of the District Forum in so far as it relates to the liability of these appellants deserves to be set aside. So far as the appeal filed by M/s. Economic Transport Organisation, Chandigarh and at New Delhi are concerned, they, in our considered view have rightly been held liable to pay; the amount in question, i.e. Rs. 25,211.29 P. with interest @ 12% per annum w.e.f. 1.4.1994 till the payment and with costs of Rs. 1,100/-. The appellant M/s. Economic Transport Organisation (for short to be referred as Economic Transport) had booked the consignment in question in being safely carried Calcutta for being delivered to the consignee M/s. P.C. Electric Company at Delhi, it will appear from perusal of the extract of the Register of M/s. Economic Transport which were placed on record before the District Forum that on earlier five occasions consignments were booked by the respondent/complainant M/s. Northland Engineering Industries & Ors. for the same consignee M/s. P.C. Electric and were delivered by the appellant M/s. Economic Transport to the said consignee on all these occasions. The respondent-complainant is, therefore, right in saying that the M/s. Economic Transport knew the consignee very well and as such M/s. Economic Transport was required to take due care and caution to deliver this consignment also to the said consignee. The learned Counsel for the appellant, on the other hand, contended that the appellant M/s. Economic Transport was not negligent in dealing with the consignment inasmuch as whosoever had the authority, i.e. the G.R. released through the Bank would be given the delivery of the consignment in question. He further contended that one Baij Nath had the G.R. with him and the consignment will be delivered to him for and on behalf of the consignee. It was further contended that Baij Nath had been taking delivery very often on behalf of the consignee M/s. P.C. Electric Company, Calcutta. The learned Counsel for the respondent-complainant on the other hand urged that Baij Nath was never authorised on any earlier occasion by the consignee aforesaid M/s. P.C. Electric Company, Calcutta to take the delivery of the consignment from the appellant M/s. Economic Transport Organisation Branch at Calcutta. He contended that the said Baij Nath suddenly appeared who was even unknown to the transporter M/s. Economic Transport Organisation but still the appellant M/s. Economic Transport who knew the persons of the consignee P.C. Electric Company did not contact any authorised person of the Company but delivered the consignment to the said Baij Nath. The District Forum dealing with this controversy observed in Para 5 of the judgment as under : "...Let us first take the case of opposite party Nos. 3 and 4 being the transporter who made the delivery of that consignment to some unauthorised person on 17.3.1994. During the course If arguments, we examined the original register brought from Calcutta office. The photostat of this has been placed on record. Against the entry bearing G.R. No. 4282, we find that there is a thumb mark as also the signatures writing as Baij Nath. M/s. P.C. Electric Company in its communication dated 10.11.1999 intimated the complainant that they do not have any person in the name of Baij Nath in their concern. The perusal of the page of the delivery register has something important to reveal. It shows that apart from the disputed consignment, five other consignments sent by the complainant were received at the office of opposite party Nos. 3 and 4 at Calcutta and these were duly delivered to the consignee and these consisted of electrical goods. The complainant has not raised any grievance in respect of those five consignments and obviously, these were taken delivery of by the right person. It has to be inferred from the above circumstances that opposite party Nos. 3 and 4 were dealing with the complainant frequently and they were supposed to know the client of the complainant. Opposite party Nos. 3 and 4 in their reply to this complaint say that they had verified the original consignee copy. After all, it is their duty to verify the facts before making the delivery and it appears that remiss occurred on the part of the opposite party Nos. 3 and 4 while making the delivery in the instant case. It is specifically urged in the complaint that opposite party Nos. 3 and 4 did not bother to enquire from the Bank or the person who took the delivery that he was really the representative of the consignee. These allegations of the complainant are not specifically denied by the opposite party Nos. 3 and 4 in para 10 of the reply on merits. In the given situation, particularly, the frequency of consignments sent by the complainant, a duty was cast upon opposite party Nos. 3 and 4 to make necessary verifications before giving the delivery of the consignment in question. This appears to have not been done by opposite party Nos. 3 and 4 and it constitutes deficiency on their part."

We find the above reasoning of the District Forum to be sound and appropriate and no interference is called for insofar as the liability of the appellants M/s. Economic Transport is concerned. The appeal filed by M/s. Economic Transport Organisation and another has no merit and it deserves to be dismissed. Resultantly the Appeal No. 2 of 2000 filed by M/s. Economic Transport Organisation and another fails and is dismissed. The Appeal No. 22 of 2000 filed appellants, i.e. Post Office and another succeeds and is allowed and the order of the District Forum fastening the liability jointly with the appellants of appeal No. 22 of 2000 is set aside and the appellants, i.e. Post Office and another are held not liable for the payment of the amount in question to the respondent/complainant. Ordered accordingly.