POST MASTER, HEAD POST OFFICE, RAJKOT vs JAIN ENAMEL WORKS

-THIS appeal arises from order dated 15.2.2000 rendered by the learned Consumer Disputes Redressal Forum, Rajkot in Complaint No. 267 of 1995, directing the opponent Postal Department to pay to the complainant Rs. 1,000/- with interest at the rate of 10% p.a. from 16.9.1995 till payment and to issue no-delivery certificate in respect of parcel in question to opponent No. 3 Insurance Company and also directing the opponent No. 3 Insurance Company to pay Rs. 27,500/- to the complainant within one month from the date of receipt of such certificate from the opponent Postal Department failing which to pay that amount with interest at the rate of 10% per annum. The opponent Postal Department through first two opponents was also directed to pay cost quantified at Rs. 200/-.

WE have heard the learned Advocate appearing for the opponent Postal Department. No one has appeared for opponent No. 3 Insurance Company. The original complainant has not canvassed any written submissions. WE have also gone through the memorandum of appeal and the decisions referred to by the learned Forum as well as submitted on behalf of the opponent Postal Department. It was the complainant''s case before the learned Forum that it entrusted one parcel to opponent No. 1 office of the Postal Department on 25.5.1994. The parcel contained silver ornaments valued at Rs. 28,500/-. The parcel was to be delivered to one Badriparasad Vishwanath Shroff, Jewellers, Mahanagar Gold Market, Lucknow. The complainant insured the parcel with opponent Postal Department for Rs. 1,000/-. The complainant also got the insurance of the parcel from opponent No. 3 Insurance Company for Rs. 27,500/- as per the policy particulars set out in the complaint. In spite of the parcel having been duly despatched from the side of the complainant, it was not delivered to the consignee or it was not received by the consignee till 8.12.1994. The complainant wrote letter dated 9.12.1994 to the opponent No. 1 office of the Postal Department. The complainant received reply dated 12.12.1994 from the said authority inter alia saying that the Postal Department was not liable for the parcel in question. The complainant wrote another letter dated 24.4.1995. The opponent did not reply the same till the complaint was filed. Upon being contacted, opponent No. 3 informed the complainant that submission of no delivery certificate from the Postal Department would be necessary for processing the claim of the complainant. The complainant passed on this information to the opponent Postal Department. However, it did not proceed to issue no delivery certificate. Complainant wrote reminder dated 25.5.1995 but of no consequence. That is how the complainant had to file complaint for claim of Rs. 27,500/- as also claim of Rs. 1,000/-, interest at the rate of 18% and cost of the complaint.

Complainant produced xerox copy of the receipt issued by the opponent No. 1 office of the Postal Department and communications addressed by the complainant to the opponents as referred to in the complaint. Opponent Postal Department through its respective offices resisted the complaint as per reply Exh. 15 inter alia alleging that the complaint submitted for the first time on 9.12.1994 by the complainant was not within the prescribed period and, therefore, the complainant was not entitled to any indemnity amount or any amount of compensation from the opponent Postal Department as per Clause 78 of Post Office Guide Part I. The complainant was accordingly informed on 12.12.1994. Hence, there was no necessity to reply further communication from the side of the complainant. In spite of the fact that the complainant defaulted in not sending any complaint within the prescribed time, opponent No. 1 wrote appropriate communication to the opponent No. 2, who informed that the record of the concerned period was destroyed. Had the complainant moved the complaint within the prescribed period as per the aforesaid provisions of Post Office Guide, the Postal Department could have thought about making payment of the insurance amount [Rs. 12,000/-]. The period within which the complaint ought to have been filed was fixed at three months from the date of despatching of the parcel. The opponent Postal Department could have also undertaken the procedure of issuance of no delivery certificate if the complaint was made within the time prescribed. As the record was destroyed, there was no question of issuance of non-delivery certificate since the very fact with regard to allegation of non-delivery of the parcel could not be ascertained by the opponent Postal Department.

OPPONENT No. 3 Insurance Company resisted the complaint inter alia on the ground that there was no deficiency in service on the part of the opponent No. 3 Insurance Company, that it was for the complainant to establish the fact with regard to non-delivery or loss of the parcel, particulars of the contents of the parcel and value thereof, that the claim of the complainant was doubtful and it was necessary to initiate full-fledged inquiry into the matter, that opponent No. 3 Insurance Company would not be liable for the claim in any event and that the complaint should be dismissed with cost. Upon consideration of the material placed on record the learned Forum came to the conclusion that the complainant established the fact with regard to delivery of the parcel to opponent No. 1 office of the Postal Department for the same being despatched and delivered to the addressee [consignee]. According to the learned Forum the record came to be destroyed by office of opponent No. 2 against the rule and regulations of the Postal Department, in spite of the fact that the complainant had already filed the complaint before the learned Forum. According to the relevant guidelines/rules and regulations of the Post Office, record could not have been destroyed before the expiry of 2 years from the date on which the parcel was booked. Yet it was stated to have been destroyed before the expiry of two years, particulars whereof are noted by the learned Forum. The learned Forum, therefore, held that the opponent Postal Department was deficient in rendition of its services with regard to the parcel in question and it was also liable to issue no delivery certificate to opponent No. 3 who should pay the claim upon receipt of such no delivery certificate.

EVEN before us, it is not in dispute that the complainant entrusted the parcel to the opponent No. 1 office of the Postal Department on 25.5.1994. It is also not in dispute before us that first complaint was made by the complainant to the opponent Postal Department after expiry of the prescribed period of three months, namely on 9.12.1994. The complainant has not produced any material from the side of the consignee except the affidavit so as to suggest that the consignee did not receive the parcel from opponent No. 2 office of the Postal Department. Affidavit [Exh. 23] of one Rajendrakumar, partner of Badriparasad Vishwanath Shroff, Jewellers, Lucknow was filed before the learned Forum. It is important to note that the complainant made complaint to the opponent Postal Department after the prescribed period of three months. It is true that the complainant filed complaint also in the year 1992 against the opponents. Yet, the office of the opponent Postal Department destroyed the records with regard to the despatch and receipt of the parcel before expiry of two years which is the period prescribed for the purpose of destruction of the records. EVEN this fact is not disputed. What is important to be noticed from these facts is that the opponent Postal Department destroyed the records in spite of the fact that it was facing the complaint from the complainant with regard to non-delivery of the post parcel to the consignee. Besides, this was a case of non-delivery of the post parcel and the complainant might have waited for some time for the consignee to have either received the article or to communicate some apprehension about loss of the article. Yet the period that has passed before the complainant made complaint to the opponent No. 1 office of the Postal Department is nearly five to seven months. Thus, there is is some delay on the part of the complainant in making the complaint to the Postal Department so as not to be within the prescribed period as per the Post Office Guide. It is in the background of such peculiar facts of the case that we are required to consider the submission made on behalf of the opponent Postal Department. In the first place Clause 78 has been canvassed for our consideration. It would read as under: "78. Period within which complaints should be preferred- Complaints should be preferred within the time-limits indicated below, after which it will not be possible to attend to them as the relevant records in the office concerned would have been destroyed in the usual course. (i) Complainants relating to loss or damage to a registered or insured article where a claim for compensation is made. Three months from the date of posting of the article. (ii) Other complaints relating to the inland post. Six months from the date of the incident."

As per Clause 175, responsibility of the Post Office is fixed as under: "175. Responsibility of the Post Office- There will be payable to the sender of an insured postal article compensation not exceeding the amount for which the article has been insured, for the loss of the postal article, or any of its contents, or for any damage caused to it in course of transmission by post, provided that the compensation in no case exceeds, the value of the article or any of its contents lost or the amount of the damage caused, and provided that, in case of loss, the sender furnishes full particulars of the contents of the postal articles and their values; provided also that no compensation will be payable. (d) Where the sender has not given intimation of the loss within three months from the date of posting."

It is in the background of the aforesaid provisions of the Post Office Guide, reference has been made to a decision of the Hon''ble National Commission in the case between Post Master, Imphal and Others v. Dr. Jamini Devi Sagolband. The decision has been rendered on 2.12.1999 in Revision Petition No. 986 of 1996 arising from order dated 12.8.1996 in Case No. 11/93 of the State Commission, Manipur. That was a case with regard to registered letter containing original B.A. certificate and the examination form duly filled in by the consumer. The registered letter did not reach its destination in time and, therefore, the complainant was not allowed to sit at the examination. She filed complaint for compensation. The opponent Postal Department asserted that there was no negligence on the part of the Imphal Post Office and that the opponent Postal Department was not liable for compensation in view of the provision of Section 6 of the Indian Post Office Act and Clause 81 of the Post Office Guide. The State Commission held negligence on the part of the opponent Postal Department and, therefore, deficiency in service. Dealing with the provisions of Section 6 of the Indian Post Office Act, the State Commission expressed a view that the provisions of the Indian Post Office were intended to protect those who had committed bona fide mistakes and not those who are guilty of dereliction of duty and callous indifference in performance of the function. Holding that the case before it was a clear case of negligence, the State Commission awarded compensation in the sum of Rs. 14,000/- on the head of agony and physical pain and Rs. 18,645/- as compensation for the loss sustained by the consumer. The matter went before the National Commission who have considered the provision of Section 6 of the Indian Post Office and observed as under: "It is to be noted that the judgments of the Courts are based on two fundamental principles. One is the absolute protection afforded to the Government and also the Government servants who had not dealt with the postal article themselves by Section 6. The other is the nature of postal service provided by the Government. The postal service provided by the Government extends throughout the territory of India. A letter sent from the remotest village in Kashmir will reach the addressee at the outermost point of Kanyakumari. A vast network has been built by the Government to provide this service. It has been emphasized that by posting a letter or handing over a packet at the Post Office for transmission to the address of the addressee, the sender does not enter into any contract with the Government. It is true 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."

The National Commission has also made a reference to the decision of the Hon''ble Supreme Court in the case of Union of India v. Mohd. Nazim reported in AIR 1980 SC 431. Following quotation has been reproduced from the said decision: "8. The Post Office was established in India by a statute. Postage required to avail of the postal services has been defined in Section 2(1) of the Indian Post Office Act as ''the duty chargeable for the transmission by post of postal articles''. Under Section 4 the exclusive privilege of conveying letters is reserved to the Central Government with certain exception which are not significant. Section 17 of the Act says that ''postage stamps'' shall be deemed to be issued by Government for the purpose of revenue. It appears from Section 23(3) of the Act that under certain circumstances postal articles sent by post may be opened and destroyed under the authority of the Post Master General. These are only some of the provisions of the Act which seem to indicate that the Post Office is not a common carrier, it is not an agent of the sender of the postal article for reaching it to the addressee. It is really a branch of the public service, providing postal services subject to the provisions of the Indian Post Office Act and the rules made thereunder. The law relating to the Post Office in England is not very much different from that in this country. In Trialus and Co. Ltd. v. Post Office, (1957) 2 QB 352, the Court of Appeal held that the Post Office is a branch of revenue and the Post Master General does not enter into any contract with a person who entrusts to the Post Office a postal packet for transmission overseas. This decision approves the observations of Lord Mansfiled in Whitfield v. Le Despenscer, (1778) 2 Cowp. 754. In the course of his judgment, Lord Mansfield said ''The Post Master has no hire, enters into no contract, carries on no merchandise or commerce. But the Post Office is a branch of revenue, and a branch of police, created by Act of Parliament. As a branch of revenue, there are great receipts but there is likewise a great surplus of benefit and advantage to the public, arising from the fund. As a branch of police it puts the whole correspondence of the Kingdom (for the exceptions are very trifling) under Government, and entrusts the management and direction of it to the Crown, and officers appointed by the Crown. There is no analogy, therefore, between the case of the Post Master and a common carrier."

Besides, it has also been observed by the Hon''ble National Commission that if the contention of the complainant was accepted, it would lead to disastrous consequences. Assuming that 10 lakh postal articles are posted all over India every day and in 1% case there is delay in delivery or loss of the postal packet, if the Government has to pay compensation for 1000 delayed packets a day and if, as in this case, compensation of Rs. 20,000/- is awarded, the Government will have to pay compensation of Rs. 21 crores a day which will come to Rs. 730 crores a year. No Government can bear the brunt of this sort of liability in rendering a valuable public service to the people. Either the postal service will have to be closed down or the charges enhance drastically to bring home nearly another Rs. 800 crores of revenue. The Government gives much more in service than it gets in revenue. That is the reason for enacting Section 6 of the Indian Post Office Act which gives absolute protection of the Government against any claim for damages on account of loss of postal article except in cases and to the extent to which it has been specifically provided in the Act itself.

WE have quoted the aforesaid observation of the National Commission for the reason that Section 6 of the Indian Post Office Act has been canvassed strenuously even in the present case which could not have been pressed into service on account of aforesaid provisions of Clause 175 of the Post Office which provides for liability of the Postal Department with respect to insured article. It is a plain proposition of law of insurance that the insurer is liable to make good loss as soon as the insured establishes the fact that the insured article is lost. In the present case the fact that the insured parcel was handed over to the Postal Department has not been in dispute. It is true that there is a belated intimation given by the complainant. At the same time, the opponent Postal Department through its office at Lucknow had ample opportunity to make inquiry and trace out whether the parcel was delivered or not. In the present case, in spite of the fact that the complaint was registered in the year 1994 and opponent Postal Department had notice about such complaint having been filed, it proceeded to destroy the relevant records not only during the pendency of the complaint but in contravention of its own rules. In our considered opinion that precisely appears to be deficiency in service on the part of the Postal Department when the article was insured. It had assumed liability at least to the extent of Rs. 1,000/-. In the present case, the complainant had filed the affidavit of one of the partners of the consignee who did not receive the post parcel. Therefore, the fact with regard to loss of parcel was very much on the record of the case and the opponent No. 3 Insurance Company could not have insisted upon the no delivery certificate from the opponent Postal Department when the records were destroyed and that fact also came on the record of the complaint. At best, it could have canvassed before the learned Forum for proving the claim of the complainant in accordance with the terms of the policy.

IN our considered opinion, the learned Forum was justified in passing order with regard to compensation in the sum of Rs. 1,000/- against the opponent Postal Department. This is in spite of the fact that the complaint was not made within the prescribed period of three months. The learned Forum has given cogent reasons for not applying limitation period of three months in case of non-delivery as distinct from knowledge of actual loss of insured parcel. Learned Forum has observed some time would have definitely passed in ascertaining whether the parcel was delivered or not delivered within reasonable time. Period of 5 or 7 months, therefore, cannot be said to be unreasonable if such passage of time is taken into consideration. The learned Forum has also considered this aspect of the case in the light of the decision referred to before it. IN that view of the matter, passage of more time than which is prescribed under the relevant clause of the Post Office Guide will not have any adverse effect on the merits of the case of the complainant insofar as opponent Postal Department is concerned. Since the opponent Postal Department did not throw any light with regard to the parcel in question, it was liable to pay indemnity amount of Rs. 1,000/-, if not anything more. Insofar as the direction to opponent No. 3 Insurance Company is concerned, there was no cause for opponent No. 3 Insurance Company not to process the claim of the insured-complainant at least after the Postal Department declared that the records were destroyed. The direction with regard to payment against opponent Insurance Company was, however, premature. Direction to opponent Postal Department to issue no delivery certificate was also not in consonance with the facts of the case on the record. If the Postal Department had destroyed the record, may be prematurely, there was no material with the Postal Department to issue either no delivery certificate or to state the fate of the parcel as such. If that is so, the direction against the Postal Department to do something which it could not do in view of the fact that there was no record available with it will not stand. However, there is no material from the side of the opponent No. 3 Insurance Company even before us to suggest that it could not process the claim of the complainant in absence of no delivery certificate from the Postal Department. It could have independently processed the claim of the complainant by calling from the complainant appropriate evidence with regard to non-delivery of the post parcel. That direction could have been issued by the learned Forum. We, therefore, propose to modify the directions with regard to opponent No. 3-Insurance Company. Following order is, therefore, passed. ORDER Impugned order dated 15.2.2000 rendered by the learned Consumer Disputes Redressal Forum, Rajkot in Complaint No. 267 of 1995 against opponent Postal Department for payment of compensation in the sum of Rs. 1,000/- with interest at the rate of 10% is hereby confirmed. Direction to the opponent Postal Department to issue no delivery certificate is hereby set aside. Direction to the opponent No. 3-Insurance Company to make payment of Rs. 27,500/- to the complainant upon receipt of no delivery certificate is also set aside. Instead, opponent No. 3-Insurance Company is directed to process the complainant''s claim as expeditiously as possible and will consider the facts with regard to despatch of the post parcel and non-receipt of the same by the consignee as per the affidavit filed in the complaint proceedings. Opponent No. 3-Insurance Company shall intimate the decision within three months from the date of receipt of true copy of this order to the complainant. It will be open to the complainant to take appropriate legal proceedings in case the opponent No. 3-Insurance Company repudiates the complainant''s claim. This appeal is accordingly party allowed, with no order as to costs, while maintaining the order of cost passed by the learned Forum. Appeal partly allowed.