POSTMASTER GENERAL, ANNA SALAI vs GIRISHCHAND KHEMKA

THE foundational facts leading to the filing of this appeal may in brevity be stated for understanding the crux of the issue involved for consideration in this action.

THE respondent/complainant sent by speed post through the appellants/opposite parties Postal Authorities, five return tickets from New Delhi to Madras by Tamil Nadu Express, leaving New Delhi on 13.2.1996, on 10.2.1996. THE speed post containing the tickets ought to have been delivered to the addressee on 12.2.1996. But, what happened was, the speed post was delivered to the addressee, a day later, i.e., to say on 13.2.1996. THE delay so caused had been admitted by the appellants/opposite parties, Postal Authorities and they, as a matter of fact, sent a cheque for Rs. 45/- to the complainant representing the cost of the speed post. THE respondent/complainant did not accept the cheque so sent by the appellants/opposite parties, Postal Authorities. The respondent/complainant instituted a complaint against the appellants, Postal Authorities, for certain reliefs as prayed for in the complaint.

The appellants, Postal Authorities, in pith and substance would contend that there was no deficiency in service on their part and the complaint is liable to be dismissed.

THE Forum below, after taking into consideration the materials placed on record and also considering the effect of Section 6 of the Indian Post Office Act, 1898, recorded a finding that the appellants/opposite parties, Postal Authorities are liable for deficiency in service for the missing of the contents of the speed post in question. The Forum below further said that in order to set right the deficiency in service, the opposite party should be directed to pay a reasonable compensation of Rs. 4,000/- only taking into account the value of the tickets sent by the speed post and compensation for mental agony and disappointment suffered by the complainant and their dependents relating to the transaction. The Forum below also directed the opposite party to pay a cost of Rs. 500/- to the complainant.

WE heard the arguments of respective learned Counsel appearing for the parties. Section 6 of the Indian Post Office Act, 1898 (for short, "Act 1898") is relatable to exemption from liability for loss, misdelivery, delay or damage. This section consists of two parts. The first part deals with the liability of the Government and it prescribes "the Government shall not incur any liability by reason of the loss, misdelivery or delay of, or damage to, any postal article in the course of transmission by post, except insofar as such liability may in express terms be undertaken by the Central Government as hereinafter provided". The first part of the section, as such, grants complete immunity to the Central Government for any loss, misdelivery, delay or damage caused to the postal article inasmuch as no provision has been made in the Act making the Central Government liable for any such loss, misdelivery or damage in any other provision of this Act. The second part is relatable to the liability of the postal personnel for loss, misdelivery, delay or damage caused to the postal article. It prescribes that "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 his wilful act or default. To put it otherwise, the postal personnel can be mulcted with liability for any such loss, misdelivery, delay or damage caused to the postal article, if the postal personnel caused the same fraudulently or by his wilful act or default. It is thus crystal clear that the liability on the part of the postal personnel for loss, mis-delivery, delay or damage is not completely exempt from any liability as that the Central Government. But, the immunity granted to the postal personnel is restricted in the manner indicated in the second part.

COMING to the factual matrix of the instant case, the appellants/opposite parties, Postal Authorities themselves admit that there is a delay caused in effecting delivery of the speed post sent by the complainant to the addressee at Delhi. There is a delay of one day. Normally, the speed post despatched at Madras on 10.2.1996 ought to have been delivered to the addressee on 12.2.1996. But what happened was that the speed post had been delivered to the addressee at New Delhi on 13.2.1996. No explanation whatever forthcame from the opposite parties, Postal Authorities as to how the delay has been caused. It is not at all the case of the opposite parties, Postal Authorities that there was a transit delay by reason of the speed post itself reaching the post office on 13.2.1996 and consequently there was no other go for them except to deliver the speed post on 13.2.1996. In the normal run of things, the speed post sent on 10.2.1996 ought to have reached Delhi within a day or two inasmuch as the speed post sent is carried by flight from Madras to Delhi. Such being the case, the speed post sent by the complainant to the addressee at Delhi ought to have reached the opposite parties/appellants Postal Authorities either on 11.2.1996 or at the worst on 12.2.1996. We are able to discern that 11.2.1996 happened to be a Sunday. Therefore, the speed post ought to have reached the appellants/opposite parties Postal Authorities on 12.2.1996. Such being the case, effecting delivery of the speed post on 13.2.1996 by the opposite parties/appellants Postal Authorities cannot be any one other than the resultant product of wilful act or default on their part.

PERTINENT it is to refer to at this juncture, the decision of the National Commission in the case of Superintendent of Post Offices & Ors. v. Upovokta Surakshya Prasad, III (1996) CPJ 105 (NC). What the National Commission said in that particular case in paragraphs 6 and 7 at pages 106 and 107 is relevant and they read as under : "6. In a number of cases we have noticed that the Postal Department has been taking shelter under the provisions of Section 6 of the Indian Postal Act which were enacted as far back as in 1890 when the then Government of the day acquired total immunity for any action of the Postal Department resulting in a loss to the consumer. In fact, thought this section, the then Government made the Postal Department totally immune from any accountability to the people whom it was serving for consideration, even if such service was subsidised in respect of certain categories of letters and postal articles etc. This provision made in 1890 in the Indian Postal Act is totally antiquated and out of tune with the spirit of a democratic Government in a parliamentary system where all actions of the Government functionaries are subject to scrutiny and all such functionaries are accountable for any lapse or misdeed on their part in the discharge of their duty. We, therefore, feel that it is time that a comprehensive review of the Indian Postal Act is undertaken so as to incorporate suitable amendments and modifications to bring it in tune with the functioning of a democratic and accountable Government.

In the present case, however, what we find is that even under the provision of Section 6, as it is, there is a patent default on the part of the Postal Department based on the admission of the peon that the letters were stamped late and delivered late resulting in a loss of one year in the educational career of the recipient. Not doing something what one ought to do is also an act of Will and, therefore, covered by "wilful act" mentioned in Section 6 as one of the circumstances, where, the liability can be fixed on the Postal Department and its functionaries. We, therefore, see no merit in this revision petition. However, we feel that the compensation of Rs. 2,000/- is somewhat on the higher side taking into account the attending circumstances to Rs. 1,000/- and to this extent this petition is allowed. We also fix costs to be paid by the petitioner to the respondent at Rs. 200/-."

What the National Commission said in the aforesaid case is squarely applicable to the factual matrix of the instant case. For the reasons as above, the finding as recorded by the Forum below that there was deficiency in service on the part of the opposite parties/appellants Postal Authorities cannot at all be stated to be not sustainable in law.

The Forum below, of course, granted compensation quantified in a sum of Rs. 4,000/- for mental agony and disappointment suffered by the complainant and their dependents relating to the transaction in question. The amounts so awarded, we rather feel, on the facts and in the circumstances of the case, is some-what excessive calling for reduction in an appropriate and reasonable sum. If the compensation so awarded is reduced to Rs. 3,000/- that will squarely meet with the ends of justice and we accordingly do so. The Forum below awarded cost of Rs. 500/- which we rather feel, on the facts and in the circumstances of the case, is reasonable calling for no interference. We, therefore, confirm such part of the award.

THE order of the Forum below is modifed to the extent indicated above and the appeal is thus disposed of making no order as to costs, on the facts and in the circumstances of the case. We shall however make it crystal clear that the order of the Forum below, as modified by us, will have to be complied with by the appellants/opposite parties, Postal Authorities, within a month from the date of receipt of our order or otherwise the respondent/complainant will be at liberty to invoke the provisions of Section 27 of the Consumer Protection Act, 1986. Appeal disposed of.