POST MASTER POST OFFICE vs CHHABILA PARSHAD

-THIS appeal has been filed against the judgment dated 5. 2. 2004 passed by the District Consumer Disputes Redressal Forum, Ferozepur (in short ''district Forum'' ).

THE facts are that Chhabila Parshad, respondent-complainant (to be referred as ''complainant'') had sent a sum of Rs. 8,000 by Bank Draft No. 88524 dated 25. 10. 2002 to his father Dahari Parshad in village Rukanpura, Manjharia, District Balia (U. P.) by registered cover vide postal receipt No. 1856 dated 25. 10. 2002 through the appellants (to be referred as ''appellants'' ). The registered letter did not reach his father. The matter was reported to the appellants who vide letter dated 28. 12. 2002 informed the complainant that the matter is being enquired into. However, the bank draft with the registered cover did not reach the addressee i. e. father of the complainant nor it was received back by the complainant. There was deficiency in service by which the complainant suffered the loss of Rs. 8,000 besides mental harassment etc. Hence, the complainant filed a complaint before the District Forum for recovery of Rs. 8,000 plus inconveniences allowance, expenses etc. The appellants filed the written reply and contested the case. Preliminary objections were pleaded that the complaint was not maintainable in view of Section 6 of the Indian Post Office Act (in short the ''act''), however, at the most the complainant is entitled to compensation amounting to Rs. 200 under Clause 170 of the Post Office Guide Part-I; that the complainant has not suffered the loss of Rs. 8,000 nor it can be stated if the bank draft for Rs. 8,000 was sent through the registered post; material facts have been concealed. On merits, it was admitted that the complainant was resident of Fish Market, Ferozepur City. It was also admitted that the complainant had sent letter dated 28. 11. 2002 to the Post Master, Arya Smaj Chowk, Ferozepur for the search of his registered article but it was not stated if he had sent a bank draft of Rs. 8,000 in that registered letter. Immediately an inquiry was initiated. It was admitted that the letter dated 28. 12. 2002 was sent to the complainant. It was denied if the appellants were liable to pay Rs. 8,000 to the complainant or any amount towards harassment, inconvenience etc. Dismissal of the complaint was prayed.

The learned District Forum considered the matter and vide impugned order dated 5. 2. 2004 accepted the complaint and awarded a sum of Rs. 200 to the complainant on account of loss of his registered letter. An amount of Rs. 1,500 was awarded as compensation for his mental harassment and Rs. 500 as litigation expenses.

HENCE the appeal. The learned Counsel for the appellants made reference to the provisions of Section 6 of the Act and submitted that the appellants-Post Office is exempted from liability for loss, mis-delivery, non-delivery, delay or damage to the postal article in the course of transmission by post. Reliance was placed on the judgment of Hon''ble National Commission reported as The Post Master, Imphal and Ors. v. Dr. Jamini Devi Sagolband, I (2000) CPJ 28 (NC)=2000 (1) CON. LT 577.

THIS submission has been considered. Section 6 of the Act reads as under: "exemption from liability for loss, misdelivery, delay or damage-The Government shall not incur any liability by reasons of loss, misdelivery 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 hereinafter provided; and no office 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 his wilful act or default. " No doubt, the provisions of Section 6 of the Act exempts the appellants from liability for loss, miss-delivery or delay of, or damage to, any postal article in the course of transmission by post. This provision was interpreted by the Hon''ble National Commission in Dr. Jamini Devi Sagalband''s case (supra ). In this judgment, the compensation was claimed for delayed delivery of postal packets. The Hon''ble National Commission came to the conclusion that provisions of Section 6 of the Act were based on solid reasons. The following observations of the Kerala High Court were reproduced as under: "an argument was made that this law was not fair. It was rejected by the Division Bench of the Kerala High Court by saying that judicial sentiment must stay within the limitations of judicial opinions. In the words of Cardozo, J. "the Judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecreated principles. He is not to yield to spasmodic sentiment, to vague and unregulated bene-volence". Probably, it is for the Government to devise ways and means by which such situations are obviated. It is a matter of policy. "

It was also observed by the Hon''ble National Commission in para 15 as under: "whether the section aforesaid requires change is for the policy makers to decide. May be there are considerations that stand against exonerating Government from tortuous liability. May be change is not called for because Billions of letters are carried by the Post and if loss would attract actions. Government would find itself faced with a spate of actions. "

THE Hon''ble National Commission had come to the conclusion in para 24 as under: "therefore, in a number of cases this Commission has taken the view that no relief can be granted to a complainant on the mere allegation of loss or non-delivery of the postal article. A postal employee may be made liable provided an action was brought against him and it was proved that he was guilty of fraud or wilful act or default leading to the loss of the postal article or non-delivery thereof. In the instant case, the complaint has been made the Post Master and Director General of the Postal Service. There is no allegation of any fraud or wilful act or default on the part of any one of the respondents. The complaint, therefore, must fail and be dismissed. "

SECTION 6, however, while exempting the Government from its liability by reason of loss, mis-delivery or delay or, or damage to any postal article in the course of transmission by post, creates an exception that where it is proved that the said loss, mis-delivery or delay or damage to any postal article in the course of transmission by post has been caused fraudulently or by willful act or by default, then the exemption clause shall not apply. In the present case, it is not the case of delay-delivery, it is the case of loss. Now the question is whether the wilful act and wilful default on the part of the appellants is proved or not. In this context, reference may be made to the judgment of the Hon''ble Tamil Nadu State Commission, Chennai reported as Post Master, Krishnagiri Post Office and Anr. v. P. Pasupathi, II (2003) CPJ 508. It was also a case in which the money order was sent but it was not received by the addressee nor it was received back by the sender. It was considered in the judgment as to in which circumstances the exception to Section 6 shall apply. "16. 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 Officer 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 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 or 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 the 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 in 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. "

In the present case also, the registered letter did not reach the addressee. It was not sent back to the sender. It was not traced at all. The complainant lodged the complaints with the appellants. Some improvement was made by the appellants among themselves but the outcome was nil. The complainant was kept awaiting for months and months but no whereabouts of the registered letter were traced nor the complainant was informed. It is a case again in which an inference has to be drawn that there was wilful act and wilful default on the part of the appellants and the present case clearly came within the purview of exception to Section 6.

IN the present complaint, it was clearly pleaded by the complainant that the appellants had been negligent in sending the registered letter of the complainant to its destination and to the proper person and it amounts to deficiency in service. The complainant has suffered a loss of Rs. 8,000, which was the value of the bank draft sent by the complainant to his father, besides mental harassment, inconvenience and tension. The complainant has proved the postal receipt No. 1856 dated 25. 10. 2002 by which the registered letter was sent by him through the appellants. Photocopy of the bank draft dated 25. 10. 2002 for a sum of Rs. 8,000 was also placed on the file. The complainant also proved the letter received by him on 28. 12. 2002 from the Customer Care Centre Department of the appellants that they are looking into the matter. It is, therefore, clearly proved that the registered cover sent by the complainant through the appellants on 25. 10. 2002 had neither reached its destination nor it was received back by the Department by which the registered letter was sent by the complainant to his father who obviously was in need of money and because of the default committed by the appellants the needs of the father of the complainant could not be fulfilled nor the desire of the complainant to send the money to his father. So much so the appellants had been sleeping over the matter in spite of the fact that the complainant had lodged complaints with the appellants.

THE wilful default is clearly made out from the conduct of the appellants that they were sitting silent over the matter in spite of repeated complaints made by the complainant. The learned District Forum has not awarded the amount of draft lost by the complainant. It has only awarded a sum of Rs. 200 on account of loss of his registered letter with Rs. 1,500 as compensation for mental harassment and Rs. 500 as litigation expenses. This amount appears to be reasonable, fair and proper. There is no merit in the appeal and the same is dismissed. No costs.

AN amount of Rs. 1,100 was deposited by the appellants at the time of filing the appeal. This amount be remitted to the complainant-respondent by way of bank draft/cheque after the expiry of 45 days. The remaining amount be paid by the appellants to the complainant within 45 days. Appeal dismissed.