POST MASTER, KRISHNAGIRI POST OFFICE vs P.PASUPATHI

THIS appeal is directed against the order dated 4.8.1998 in O.P. No. 21/1998 on the file of the District Consumer Disputes Redressal Forum, Krishnagiri.

THE appellants are the opposite parties while the respondent is the complainant. Short facts may be related in order to understand the crux of the issue arising for consideration in this action.

The complainant sent a telegraphic money order on 10.11.1997 for a sum of Rs. 1,000/- to one Selvam, S/o. Duraisamy Gounder, Vettappattu Post and Village, Natrampalli Via, Vellore District. Pin : 635 852 from the Head Post Office at Krishnagiri. The money order so sent did not reach the payee at all. Consequently, he made a complaint to the Head Post Office. To the complaint so sent, he received a letter from the opposite parties requiring him to furnish the full address of the payee. The complainant complied with the request emanating from the opposite parties by furnishing the full address of the payee on 19.1.1998. Despite that the telegraphic money order did not at all reach the payee.

IN such a backdrop and setting, the complainant knocked at the doors of the Forum below alleging deficiency in service on the part of the opposite parties and praying for certain reliefs as made in the complaint. The opposite parties in pith and substance would contend that there was no deficiency in service on their part on the face of the sanguine provisions as adumbrated under Section 6 of the Indian Post Office Act, 1898 under which there is complete immunity from liability for loss, mis-delivery or delay or damage caused in postal transmission. There was no fraudulent or wilful act on the part of the opposite parties. The complaint as such is liable to be dismissed.

THE Forum below after taking into consideration the materials placed on record, recorded a finding that there was deficiency in service on the part of the opposite parties and consequently directed the opposite parties to return the telegraphic money order amount of Rs. 1,000/- with interest @ 12% from 10.11.1997 till payment and to return the money order charges of Rs. 55/- collected from him and to pay a compensation of Rs. 2,000/- for mental agony and anguish suffered. THE Forum below also issued a further direction that the opposite parties should comply with award within 30 days from the date of its order or otherwise they are liable to pay interest @ 18% for the award amount. Aggrieved by the order as above, the opposite parties resorted to the present action by engaging a Counsel of their choice namely learned Counsel M/s. K. Sambasivam. On service of process, the respondent/complainant entered appearance through a Counsel of his choice namely learned Counsel M/s. P. Sam. When this matter came up for hearing before us today, learned Counsel M/s. P. Sam appearing for the respondent/complainant is called absent and no representation is made on his behalf. We are however inclined to dispose of the appeal on merits of course after hearing arguments of learned Counsel Mr. J. Venkatesh representing learned Counsel M/s. K. Sambasivam appearing for the appellants/opposite parties and on perusal of the materials placed on record.

FROM the pith and submission of the said learned Counsel and on perusal of the materials placed on record, the one and only question that crops up for consideration is as to whether the order of the Forum below is sustainable in law on the facts and in the circumstances of the case.

THERE is no denial of the fact that the complainant sent a telegraphic money order on 10.11.1997 for Rs. 1,000/- to one Selvam, S/o. Duraisamy Gounder , Vettappattu Post and Village, Natrampalli Via., Vellore District Pin : 635 852. THERE is also no dispute that the telegraphic money order so sent did not at all reach the hands of the payee till about the filing of the complaint before the Forum below which event happened on 24.2.1998. Thus, it is crystal clear the very purpose for which the telegraphic money order had been sent was not at all achieved and despite the elapse of 105 days on the date of the filing of the complaint the money order so sent did not at all reach the hands of the payee. The defence taken by the opposite parties before the Forum below was that there was complete immunity from liability for loss, mis-delivery, delay or damage caused in postal transmission as per the provisions of Section 6 as adumbrated under the Indian Post Office Act, 1898 (for short, "Act, 1898"). This sort of a defence, we rather feel, is a misconceived one and the said provision is not at all applicable to the factual matrix of the case on hand. The relevant section applicable to the factual matrix of the case on hand is Section 48(c) of Act, 1898. Section 48(c) reads as under : "48. Exemption from liability in respect of money orders-No suit or other legal proceeding shall be instituted against (the Government) or any officer of the Post Office in respect of- (a) ................................. (b) ................................. (c) the payment of any money order being refused or delayed by, or on account of, any accidental neglect, omission or mistake, by, or on the part of an officer of the Post Office, or for any other cause whatsoever other than the fraud or wilful act or default of such officer; (d) ................................. (e) ................................."

From what has been extracted above, it is rather crystal clear that as respects the payment of money order being refused or delayed due to reasons such as accidental neglect, omission or mistake, by or on the part of the officer of the Post Office or any other cause excepting fraud or wilful act or default of such officer, no suit or other legal proceedings shall be instituted against the Government or any officer of the Post Office. To put it otherwise, payment of any money order being refused or delayed by the commission of any fraud or wilful act or default of any officer of the Post Office, the exemption from liability may not be there as against the Government or any officer of the Post Office and in such cases, suit or other legal proceedings shall be instituted either against the Government or any officer of the Post Office.

PERTINENT it is also at this juncture to refer to Section 3 of the Consumer Protection Act, 1986 (for short "the Act". According to the said section, the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Such being the case, the Act, 1898 must be construed to be the law for the time being in force as per the said provision. In such an eventuality, the provisions of the Act can only operate in addition to and not in derogation of the provisions of the Act, 1898. On the combined reading of Section 3 of the Act and Section 48(c) of the Act, 1898 it is rather crystal clear that the exemption from liability in respect of money orders cannot be claimed either by the Government or any officer of the Post Office in case of commission of fraud, wilful act or default of any officer of the Post Office resulting in the payment of money order being refused or delay occasioned therefor.

THE moot question that arises for consideration in the light of the legal provisions as stated above is as to whether there is any material placed on record pointing out the practice of fraud or wilful act or default on the part of any officer of the Post Office in question in the case on hand. THE further incidental question that may arise for consideration is as to what is the sort of proof on such aspects of the matter which is required to mulct liability either on the Government or any officer of the Post Office in question. The general rule is that as and when any person like the complainant coming forward with a complaint alleging the practice of fraud or wilful act or default on any of the officer of the Post Office in question must have to prove the same in order to mulct liability upon such officer against whom the complaint is launched. Such a general rule is not without any exception. The factual matrix of the instant case, we rather feel, is not governed by the general rule as respects burden of proof, but instead being governed by the exception to the general rule. We may now elaborate such aspects of the matter by reference to the factual matrix of the case on hand. The complainant admittedly went to the Post Office in question and gave the telegraphic money order after paying the necessary and requisite commission besides furnishing the particulars of the address of the payee to whom the telegraphic money order to be sent. That is to say, what is lawfully expected of him to be done had been done by him and nothing further remains to be done. The further thing to be done in respect of the transmission of the telegraphic money order to the addressee is to be done by the postal personnel/opposite parties 1 and 2. The complainant cannot at all be expected to have any sort of a knowledge as relatable to further acts done by the opposite parties 1 and 2 in the despatch of the money order form and other related matters so as to see that the payment under the money order form was to be duly effected to the addressee. It is incumbent for the opposite parties 1 and 2 to give particulars or other details as to in what manner they have effected the despatch of the money order form from that Post Office to the post office of the addressee enabling the Post Office of the addressee to effect payment of the money order by the personnel of the Post Office to the addressee inasmuch as those matters are exclusively within the personal knowledge of the opposite parties 1 and 2.

RELEVANT at this juncture to refer to the sanguine provisions as adumbrated under Section 106 of the Indian Evidence Act, 1872 (for short, "the Act, 1872"). The said section deals with burden of proving fact especially within knowledge. The section reads as under : "106. Burden of proving fact especially within knowledge-When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Two illustrations are appended to that section. They read as under : (a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him. (b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him.

ON the face of Section 106 of Act, 1872, it goes without saying that the opposite parties 1 and 2 must have to divulge all information within their exclusive knowledge as relatable to the despatch of the money order form to the addressee Post Office and other relevant details thereto for making the payment of the money due under the money order to the addressee stated therein. In the case on hand, there is total absence of proof on the part of the opposite parties 1 and 2 on such aspect of the matter. Such being the case, we rather feel, that we are not far wrong in stating that we are entitled to draw an adverse inference under Section 114(g) of the Act, 1872 which prescribes that the evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. Such being the case, we are of the view that a legitimate inference could be drawn on the facts and in the circumstances of the case that either a fraud or wilful act or default had been committed by the opposite parties 1 and 2 which resulted in not effecting the payment of money due under the telegraphic money order sent by the complainant to the payee without any loss of time. It is thus crystal clear that either on account of the fraud or wilful act or default of the personnel belonging to the opposite parties 1 and 2, the payment due to the payee under the telegraphic money order sent by the complainant had not been effected. Such being the case, it goes without saying that there was deficiency in service on the part of the opposite parties.

For the deficiency in service on the part of the opposite parties, the Forum below directed them to return the telegraphic money order amount of Rs. 1,000/- with interest @ 12% p.a. from 10.11.1997 till payment and to return the money order charges of Rs. 55/- collected from him besides the payment of compensation quantified in a sum of Rs. 2,000/- for mental agony suffered by him. The direction for the refund of the money order amount to the complainant with interest @ 12% p.a. from 10.11.1997 till payment and to return the money order charges of Rs. 55/- collected from him cannot at all be stated to be not sustainable in law. However, the direction for the payment of compensation quantified in a sum of Rs. 2,000/- for mental agony suffered by him is not in accordance with law. Courts of superior jurisdiction laid down the dictum that either interest at a reasonable rate for the amount due or compensation for mental agony could be made and not both. That is to say, either one of the two things alone is grantable. The Forum below granted both interest @ 12% and also compensation for mental agony quantified in a sum of Rs. 2,000/- to the complainant. Either one of the two things alone can be retained. In this view of the matter, the award made by the Forum below by way of compensation for mental agony and anguish deserves to be deleted retaining the payment of interest @ 12% p.a. on Rs. 1,000/- the amount of the telegraphic money order and we accordingly do so.

IN fine, except the extent of the modification we made as above, the appeal shall stand dismissed in other respects. We made no order as to costs on the facts and in the circumstances of the case. We however make it crystal clear that the order of ours as above is required to be complied with by the opposite parties within two months from the date of receipt of the order or otherwise it would be perfectly open to the complainant to invoke the jurisdiction under Section 27 of the Act. Appeal dismissed.