Ganga Optical vs POST MASTER GENERAL

1.THIS is an appeal under Section 15 of the Consumer Protection Act, 1986 (the Act) directed against the order passed by the District Consumer Disputes Redressal Forum, Surguja, (hereinafter referred to as the District Forum) in Complaint Case No. 157/2000. The District Forum by the impugned order has dismssed the complaint.

COMPLAINANT has stated in his complaint that the respondent No. 4 had sent spectacles, frames, lenses, and glasses to the complainant by a registered post parcel under receipt No. 2180, Malkaganj Post Office, Delhi. A credit memo was also issued on 24.4.2000. It is averred that on 1.5.2000 learning of arrival of the said parcel, the complainant went to the Head Post Office at Ambikapur where he was shown the damaged parcel. He requested for open delivery of the parcel, but it was refused. However, it was agreed that the parcel will be weighed and certificate of the weight issued. Accordingly, on weighing the parcel was found to weigh only 820 grams and a shortage in weight by 730 grams was found. It is further stated that the parcel was opened by the complainant in the verandah of the Post Office in the presence of P.K. Goyal, Kuldip Malik, S.N. Pathak, Narendra Tuteja and Ashok Kumar, and it contained pieces of paper and small bricks in place of the articles booked. Therefore, an amount of Rs. 11,220 as price of the articles lost, Rs. 71 as postage paid and Rs. 5,000 as damages for mental harassment have been claimed. Reply has been filed by the respondent No. 2/OP 2. It is admitted that a registered parcel numbered at 2180 was booked to the complainants address on 26.4.2000, from Malkaganj Delhi Post Office and was received in Ambikapur Post Office on 1.5.2000. The said parcel was stitched by thread from all sides and appeared intact and undamaged. However, the weight of the parcel was found to be only 820 gms as against 1550 gms as mentioned on the parcel at the time of the booking. This discrepancy was noted in the departmental records and intimation to the respective offices sent. The parcel was delivered to the complainant and acknowledgement obtained with clear endorsement regarding weight. A certificate was also issued on the request of the complainant the same evening. Since the parcel had already been delivered earlier in the day question of open delivery did not arise. It is denied that the respondents/opposite parties had any knowledge of the contents of the parcel.

FIRST objection raised by the respondents/opposite parties is that the complaint does not lie as the parcel was not booked by him. It is submitted that the person booking the parcel alone had the right to approach the Forum as complainant. In our opinion the complainant being the beneficiary of the transaction is included in the definition of consumer under the Act and is entitled to complain under the provisions of the Act. Therefore, the objection regarding tenability of the complaint cannot be entertained.

IT is further stated that under the Section 6 of the Indian Post Office Act no liability can be fastened on the respondents/opposite parties for loss, misdelivery, etc. of any articles unless expressly undertaken at the time of booking. Questions for consideration before us are : whether the parcel was tampered with and whether the articles as claimed were delivered to the appellant/complainant?

THE opposite parties/respondents in para 3 of the reply have admitted that when the parcel weighed 1550 gms. when booked, while it was found to weigh only 820 gms. by the Post Office at Ambikapur, and there was a shortage of 730 gms before delivery, though it is stated that the parcel was inspected before delivery and found intact.

COMPLAINANT /opposite party 4 have filed a copy of the credit memo dated 26.4.2000 showing particulars of the articles despatched. The said credit memo bears the remark that the articles were sent to the complainant/appellant by post. Affidavit by Amritlal Bhandari, Director, Sandeep Optical Co. Pvt. Ltd. respondent/O.P. 4 has also been filed stating that the articles under the said credit memo were despatched by the said parcel. Copy of letter addressed to the Post Master, Ambikapur requesting for open delivery of the parcel is also on record. Although the request for open delivery was not accepted but a certificate regarding the shortage in weight has been recorded by the Assistant Post Master on the letter itself. Complainant has also filed a copy of Panchanama prepared by him at the time of opening the parcel in the presence of Kuldip, Narendra, etc. In our opinion there is sufficient material on record to show that the parcel was tampered with. The parcel was found outwardly intact on pre -delivery inspection in the Post Office, Ambikapur although the weight was found less. The natural inference would be that the parcel must have been opened, contents replaced and again stitched. This obviously could have happnend after handing over of the parcel while booking and the before delivery to the addressee. Undisputedly during the said entire period the parcel was in the possession of the respondent. There is no reason to disbelieve the credit memo, affidavit of respondent -4, Messrs Surendra Opticals, and certificate of loss of weight.

LEARNED Counsel for appellant relied upon the decision of Delhi State Consumer Commission, New Delhi in Sr. Supdt. Post Office v. Naresh Kumar Singh, III (2005) CPJ 9. In the above cited case it was held the appellant -Supdt. Post Office deficient in service on non -delivery of the passport transmitted by Regional Passport Officer and upheld the order awarding cost and compensation.

LEAREND Counsel for respondents submitted that in view of specific bar under the Indian Post Office Act the immunity against liability for reasons of loss, mis -delivery or delay or damage to any postal article in the course of transmission by post is available to the respondents. Only exception under Section 6 of the Act is when such liability is undertaken in express terms. It is not in dispute that in the present appeal the article in question was sent under registered post parcel and there was no commitment or undertaking regarding any compensation for loss or damage to the said articles as is the practice in case of insured article. Learned Counsel for respondents relied upon the decision of National Commission in Devi Engineering Co. v. Union of India, I (1998) CPJ 103 (NCDRC). In our opinion the said citation of National Commission does assist the appellant and in view of Section 6 of Indian Post Act, the liability of the respondents is limited to Rs. 100 only. Therefore, this appeal is partly allowed. The impugned order is modified to the effect that the respondents shall pay to the appellant Rs. 100 (one hundred) as compensation for deficiency in service. The respondents are also directed to pay Rs. 2,000 (Rupees two thousand) only as cost of the complaint as well as cost of the appeal to the appellant. Appeal partly allowed.