NIRMAL PANDA vs Post Master General

NON-delivery of an article sent by speed post is grievance of complainant alleging deficiency in service of opposite parties who are officers of Central Government rendering postal service to consumers.

COMPLAINANT sent an article by speed post on 16.6.1991 to Manager, Spare Parts, B.S. Ramakrishna, Mahindra Nisan Always Limited, Secunderabad-8 in respect of which he paid speed post charges of Rs. 30/-. Since the article was not delivered to the addressee, complainant submitted a written grievance to opposite party No. 3 where he stated that the article contained a bank draft of Rs. 10,000/-.On the next day i.e., 2.7.1991, a service telegram was sent by opposite party No. 3 to Speed Post in charge, Secunderabad to confirm the date of delivery of the article and reason for the delay in delivery. As no reply was received, another service telegram was issued on 4.7.1991 by opposite party No. 3. Opposite party No. 3 received the reply dated 5.7.1991 that the article was lost while in the custody of the postman. After receipt of the same the fact appears to have been reported to opposite party No. 2 who issued an office order for refund of Rs. 20/- as the article was lost while in custody of the postman and could not be delivered within the normal transit period. Copy of the same was sent to opposite party No. 3 for immediate drawl copy was also sent to complainant. Long thereafter on 25.2.1992 complaint has been filed alleging that the bank draft was sent as advance on basis of a telephonic talk with the addressee for delivery of spare parts which were required for the mini truck of Always Nisan brand of complainant. Since speed post is to be delivered within 24 hours, complainant started for Hyderabad in an empty mini truck with a driver and a mechanic in order to get delivery of the spare parts. Reaching Secunderabad complainant learnt from the company that bank draft had not reached for which complainant had to return back with the empty mini truck without getting delivery of the spare parts. In this process, complainant incurred Rs. 7,500/-. As the complainant also suffered physical inconvenience and mental agony, he has filed the complaint for compensation of Rs. 1,25,000/-.

In reply, opposite parties stated in short that the contents of the speed post article and purpose of sending the article are not known to them. Opposite parties also have no knowledge of the expenditure incurred by complainant. On enquiry, loss of the article having been found, refund of speed post charges has been sanctioned. Complainant is not entitled to any compensation in view of Section 6 of the Post Offices Act and nothing else can be done except taking departmental action against the post peon.

COMPLAINANT has produced copy of the bank draft obtained on 14.6.1991, copy of letter dated 1.7.1991 to opposite party No. 3. Copy of the sanction order in support of the case. Opposite parties produced copy of letter dated 1.7.1991 from complainant to opposite party No. 3, copy of communication dated 1.7.1991 from opposite party No. 3 to Secunderabad Post Office, Reminder Communication dated 2.7.91 and 4.7.91. Reply Communication from Secunderabad dated 5.7.1991 circular relating to speed post service to all senior post masters of Bhubaneswar Division and a printed speed post Brochure for Orissa. On the aforesaid materials it is to be determined; (i) Whether complainant is a consumer? (ii) Whether opposite parties rendered any service to complainant? (iii) Whether there is deficiency in service? (iv) Whether such deficiency is on account of negligence of opposite parties? (v) What is the suffering of complainant? and (vi) What direction is to be given?

POINT Nos. (i) and (ii) - Complaint relates to non-delivery of speed post article. When an article is received from a person by another to be delivered on his behalf at another place, the person receiving the article for delivery renders a service to the person from when the article is received. When payment is made for getting such service, person handing over the article becomes a consumer of the service rendered by the other person. Person receiving the article for delivery renders a service for payment. So far as post offices receiving the articles, telegram or money, there cannot be any dispute that it is a service. If any support is necessary decisions of State Commission of Andhra Pradesh reported in 1991 (1) CPR 299 (Koku Rajendra Prasad v. Union of India Rep.by Supdt. of Post Offices Nellore), State Commission of Karnataka reported in 1991 (2) CPR 105 (Telegraph Master (O) Belgaum & Others v. E.F. D''Silva & Others) of State Commission of Goa reported in 1991 (2) CPR 236 (The Senior Superintendent of Post Offices, Panaji, God v. Mrs. Melita Lobo). This Commission has also held the same to be a service in the decision reported in 34 (1992) OJD 279 (CP & FCC) (S. Laximipati v. Post Master). Next question for consideration is whether the rendering of service in the case is deficiency. Delay in delivery or non-delivery of article received for delivery at destination to the addressee is a deficiency in service. This has been held by the National Commission in the decision reported in 1992 (2) CPR 137 (M/s. Skypack Couriers Pvt. Ltd. v. CEBS and Others). Point for consideration how is whether it is on account of negligence of opposite parties. It is true that opposite parties sent the article received for delivery at the destination. Directing, they are not responsible for the loss. Post Peon at Secunderabad to whom the article was handed over for delivery in directly responsible. However, the person receiving the article wore in team with the person to deliver. They are not separable. On receipt of the article opposite parties took the responsibility to deliver. If non-delivery is on account of vis-majore-or-force-majeure it is within knowledge of opposite parties and the team. Consumer is not at all concerned with it. Once an article is received for delivery, it is for the opposite parties to take care that it reaches the destination and addressee to whom it is to be delivered with the time they have given out. If the same could not be delivered, it is their responsibility to intimate the consumer that the same could not be delivered and also the causes for the same. This is ancillary to the service rendered. Unless opposite parties are protected by any law, this normal behavior cannot be departed from. In this case no information was given to complainant till 1.7.1991. Complainant had to approach opposite parties. This is a clear case of negligence of the opposite parties. Inference of negligence is to be drawn from the conduct of a party, depending upon his status, situation and the like. In one given case it may not be negligence but in another case with similar facts it may be negligence. We are inclined to held that opposite parties were negligent in rendering service to complainant is not explaining the circumstances under which the article could not be delivered till 1.7.1992.

IT is to be considered whether complainant suffered and the nature of this suffering. Case of complainant is that he sifted by going to Hyderabad with mini truck and returning back with the empty mini truck. There is no material before us except version of the complainant. Details of the mini truck takes name of the driver and the hotel in which they stayed at Hyderabad are not indicated. If affidavit of the driver would have been filed, we might have been able to think in favour of the complainant. Ownership of the mini truck would have been another circumstances. List of spare parts to be obtained to require a mini truck to be taken empty from Orissa to Hyderabad would have been another circumstance. In absence of these details we are not inclined to hold that complainant suffered financially on these accounts.

COMPLAINANT having filed the Xerox copy of the bank draft we are able to accept that complainant sent the draft in speed post asserted by him. He does not allege misdelivery so that any other person encased the bank draft. He would, however, spend time and energy for getting refund of the bank draft. In absence of details we assess this suffering to be compensated by receipt of Rs.200/-. Complainant has addressed letters and we believe that he spent time and energy to approach opposite parties in respect of the loss. For this suffering in absence of details we assess compensation of Rs. 100/- to mitigate the suffering.

Complainant has paid charges for the bank draft. He has paid charges for speed post service. He has used stationeries and has spent time and energy for both from which he did not get any benefit This suffering can be compensated by payment of Rs. 100/-.

OPPOSITE party No. 2 has issued sanction order for Rs. 20/-. Even from speed post charges of Rs. 30/- paid an amount of Rs. 10/- has been deducted. Possibly because of the clause in the circular deduction is made. Clause 144 of the circular dated 27.1.1988 reads as follows : "Procedure for refund of speed post fee : The Sender of speed post article will be entitled for the refund of speed post fee only (excluding postage, fee, registration charges and air surcharge, if any) when the articles are either not delivered or delivered late due to operational service, faults on the part of Postal Department. The sender will not be entitled for any kind of refund of speed post fee when the articles are not delivered or late delivered due to reasons other than those mentioned above. No compensation will be payable on the loss of speed post article."

This circular is a departmental instruction and is not a statutory provision. Unless law prohibits for such compensation, a person committing the wrong or breach of contract cannot instruct not pay. This circular is not being law Section 3 of the Consumer Protection Act would not protect opposite parties who are negligent in rendering the Postal service to complainant which is deficient inasmuch as on receiving the article they undertook the delivery to the addressee at the destination. When a sender has no fault and there is no vis-majore-or-force-majeure for loss of a speed post article, there is absolutely no reason for his contributing to the loss of article unless it is hold that he ought not to have believed the postal organization itself. Officers of the Postal Department are responsible to bear the loss themselves and distribute it among themselves. Opposite parties take shelter under Section 6 of the Post Offices Act, 1898. It is true that in case Section 6 applies to the facts of this case, no compensation is payable by opposite parties who are Officers covered under Section 6. It reads as follows : "Exemption of liability for loss, misdeliver, delay or damages. - The Government shall not incur any liability by reason of the loss, misdelivery or delay of, or damage to any postal article in course of transmission by post, except 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, misdelivery, delay or damage, unless he has caused the same fraudulently or by willful act or default."

UNDER Section 49 of the Post Offices Act entangling safety of a Postal article is an offence committed by the person employed to carry the Postal article. Post peon has, thus, prima facie committed an offence since the loss of the article is not explained to us. Opposite parties have either covered the misconduct of the postman or have not taken steps to book the offender. They remain satisfied by stating that proceeding may be drawn against the postman. As stated earlier, they act in team with the postman. Whether it would amount to offence under Section 49 or any other provision, it is clear that on account of their default in a team the article was lost. This inference is drawn since they do not explain the circumstances under which the article was lost. Whenever a person receives an article to do something in respect of an article, it is within his knowledge what happened to the article and in absence of explanation it is to be presumed that he defaulted to take due care in respect thereof. For this default, he is not protected under Section 6 of the Post Offices Act. If immediately after expiry of the period of delivery as undertaken, opposite parties would have taken steps for knowing the fate of the article, we would have considered to hold that they took all steps they could within their means when after they became helpless. No such action has been taken. They remained indifferent till 1.7.1991. Even after knowing that the article was lost by post peon, they did not try to ascertain the name of the post peon and the cause of such loss. They took it for granted that their responsibility ceases with loss of article. If Section 6 is interpreted in a manner as opposite parties intend us to interpret. Persons in public services with asserted protection and status under the Constitution would become casual which would head to suffering of every citizen. Time has come when they should be called upon to explain their conduct by any adjudicating machinery where right of a person is affected and he suffers on account of failure to discharge of obligation by the Officers. There is no good faith in such actions and inactions. Higher the position and states, greater is the responsibility. It is their option to continue in the employment. If they feel that they cannot discharge such responsibility, they should vacate the Office. They ought not to be permitted to enjoy the benefits of employment at the suffering of consumers. Much can be said in this respect. In this case, however, we are satisfied that opposite parties by their inaction contributed to the suffering of complainant. They are liable to pay the compensation as determined. 16. In conclusion opposite parties are jointly and severally made liable to pay compensation of Rs. 400/- to the complainant as discussed earlier in addition to the amount of Rs. 20/- already sanctioned and we direct accordingly. In result, complaint is allowed. Complaint allowed.