S.VIVEK vs MANAGER, SPEED POST CENTRE

THE complainant is one S. Vivek.

THE opposite parties are : (1) THE Manager, Speed Post Centre, Speed Post Business Office, Greams Road, Chennai-6. (2) Sylvan Testing Service (P) Ltd., Arcon Plaza, 21, LSC Pushpavihar, Madangir, New Delhi-110 062. (3) THE Manager, State Bank of India, AIR Cargo Complex Branch, Meenambakkam, Chennai - 27. The complainant it appears is a B.E. graduate of the year 1998. He would claim that his performance throughout his career as an engineering student was excellent and admirable. He was desirous of pursuing his further studies in foreign shores particularly United States of America. He, it appears, had applied to various Universities in U.S.A. for pursuing higher studies in engineering faculty.

Graduate Record Examinations (GRE), it is said, is conducted by Educational Testing Services in U.S.A. The 2nd opposite party is acting as agent for collecting application forms and forwarding it to the Educational Testing Services, USA. The complainant, it appears, sought for admission to Princeton University, Virgenia. For admission to the said University, the 2nd opposite party, it is said, had been conducting GRE after collecting an amount of US $ 120.

THE complainant obtained the Demand Draft on 15.10.1998 for US $ 120 from the 3rd opposite party. THE application alongwith the draft had been sent to the 2nd opposite party through the 1st opposite party on 16.10.1998 by speed post. THE application alongwith the draft so sent did not reach the 2nd opposite party the next day, but it reached the 2nd opposite party after a delay of 4 days, that is to say, on 20.10.1998. The 2nd opposite party by their letter dated 7.12.1998 informed the complainant that they misplaced the demand draft of US $ 120 and requested him to send another demand draft for US $ 120. Since the time was running, he took another draft for US $ 120 on 9.12.1998. As requested by the 2nd opposite party in their letter dated 7.12.1998, the complainant also took steps for stopping payment of the first draft dated 15.10.1998 by giving proper intimation to the 3rd opposite party.

THE complainant would allege deficiency in service on the part of the three opposite parties. He would say that the 1st opposite party did not deliver the application alongwith the draft to the 2nd opposite party promptly even though the said application alongwith the draft was sent by way of speed post. Normally, the speed post ought to have reached the other end within 24 hours. THE speed post having been delivered after a delay of 4 days on 20.10.1998, he would claim that there was callous negligence and deficiency in service on the part of the 1st opposite party in effecting delayed delivery of the application to the 2nd opposite party. He would also allege deficiency in service on the part of the 2nd opposite party in view of the fact that they had misplaced the earlier draft for US $ 120 sent on 16.10.1998 sent to them along with an application by way of speed post. He would further allege that because of the misplacement of the draft, delay occurred in submitting the application to the University at U.S.A. This apart, he had to appear for the GRE in a delayed fashion.

AS respects the 3rd opposite party, he would say that though he had sent proper intimation to them requesting them to stop payment of the draft dated 15.10.1998 for US $ 120 yet they had not responded in giving proper information to him as respects the steps taken by them. This sort of an act on the part of the 3rd opposite party, he would claim is definitely deficiency in service.

ALLEGING the factors as above, he knocked at the doors of this Commission praying for the reliefs as below : (1) To direct the opposite parties to pay a sum of Rs. 5,00,000/- for mental agony; (2) to direct the opposite parties to return the demand draft amount of US $ 120 with accrued interest and other charges totalling to Rs. 8,000/-; (3) to direct the opposite parties to pay a sum of Rs. 5,000/- towards legal expenses; and (4) to pass such other orders as this Commission may deem fit and proper.

The 1st opposite party would file a version mainly contending as below :

No doubt true it is the Speed Post Article (SPA) No. 193 was delivered to the 1st opposite party on 16.10.1998. The SPA could not be delivered to the addressee on the next day as their premises were closed on 17.10.1998 being Saturday; 18.10.1998 was Sunday; 19.10.1998 was a holiday on account of Deepavali; consequently, the SPA was delivered on 20.10.1998; as such there is no deficiency in service on the part of the 1st opposite party.

THE 2nd opposite party in pith and substance would contend that they in fact received the application of the complainant along with the draft for US $ 120 on 20.10.1998. THE said draft was however misplaced. THEy sent a letter dated 7.12.1998 to the complainant informing him about the misplacement of the said draft besides requesting him to take steps to stop payment of the earlier draft and to send a fresh draft for US $ 120. THEy are prepared to pay compensation for out of pocket expenses not exceeding Rs. 750/- for their act of misplacing the draft. No delay at all occurred in appearing for GRE by the complainant. He himself made a request in the application submitted for his appearance for the said examination in the first week of January, 1999. He had also forwarded a letter of request requesting the opposite party to have his examination during the first week of January, 1999. The 3rd opposite party would file a version as below :

THE complainant approached this opposite party for a demand draft for US $ 120 on 15.10.1998 and the demand draft was issued. THE complainant also approached them on 9.12.1998 to stop payment of the said demand draft for the earlier draft dated 15.10.1998. Immediately they issued a telex to the New York branch requesting them to stop payment. Since no reply was received, another telex was sent on 21.12.1998. Again another telex message was sent to New York branch on 27.1.1999. THEy received a reply on 1.2.1999 stating that the draft had not been presented for payment and they had noted stop payment advice. As such, there is no deficiency in service on their part. When this action came up for enquiry before us today, the complainant S. Vivek is called absent. Even learned Counsel representing him namely Mr. P. Shankaran is also called absent and no representation is made on his behalf. The 1st opposite party is represented by their learned Counsel Mr. V.N. Gowrishankar and he is prepared to get alongwith the enquiry. Similarly, the 2nd opposite party is represented by its Director Dharam Priya Dass and he is also prepared to get alongwith the enquiry,. The 3rd opposite party, of course, is represented by their learned Counsel K. Muralidharan. He is called absent and no representation is made on his behalf.

THE fact that the complainant and his learned Counsel as well as third opposite party and their learned Counsel is absent does not mean that we cannot get along with the enquiry. We perused the materials placed on record by the respective parties. We heard the arguments of learned Counsel representing the 1st and 2nd opposite parties.

FROM the perusal of the materials placed on record and the pith and submission of learned Counsel representing opposite parties 1 and 2 the issues that crop up for consideration are as below : (1) Whether there is any deficiency in service on the part of the opposite parties 1 to 3 on the facts and in the circumstances of the case ? (2) To what reliefs the complainant is entitled to on the facts and in the circumstances of the case ? Issue No. 1 : The perusal of the materials placed on record does point out in no uncertain terms that the complainant despatched the application alongwith the draft for US $ 120 to the 2nd opposite party on 16.10.1998 for his appearance for GRE. What is further pointed out is that the 2nd opposite party did receive the application alongwith the draft for US $ 120 and the draft so received by them had been misplaced by them. Consequently, they requested the complainant to send another draft for US $ 120 so as to enable the complainant to appear for GRE. The complainant in turn also took another draft for US $ 120 and sent the same to the 2nd opposite party. Subsequent to the despatch of the second draft for US $ 120 the complainant was allowed to appear during the first week of January, 1999, for GRE as per his request. In such circumstances, it cannot be stated that the delay occurred for the complainant''s appearance for GRE on the part of the 2nd opposite party. As such, the 2nd opposite party cannot at all be mulcted with any liability for deficiency in service on their part as relatable to the complainant''s appearance for GRE. The 2nd opposite party however can be mulcted with liability for deficiency in service on their part as relatable to their act of misplacement of the draft for us $ 120 received by them. Because of the misplacement of the draft the complainant was put to an agonising situation of taking another draft for US $ 120 and sending the same to the 2nd opposite party so as to see that he was allowed to sit for GRE during the first week of January, 1999. The said draft was however not presented for encashment as getting revealed by the version filed by the 3rd opposite party. After the elapse of the prescribed time the value of the misplaced draft in favour of the 2nd opposite party can be realised by the 2nd opposite party. Such being the position, they are duty-bound to pay the value of the draft to the complainant. The value of the draft namely US $ 120 at current market rate comes to Rs. 5,527.20 (one US dollar valued at Rs. 46.06). This apart, the 2nd opposite party had specifically stated in their version that they are prepared to pay Rs. 750/- for out of pocket expenses for their act of misplacing the draft earlier sent by the complainant. As such, they are liable to pay to the complainant Rs. 5,527.20 + Rs. 750/- = Rs. 6,277.20 rounded off at Rs. 6,277/-.

The complainant had been deprived of the use of the amount of the earlier draft on and from 20.10.1998 the date on which the draft had been received by the 2nd opposite party and such being the position the 2nd opposite party must be mulcted with the liability for payment of interest at a reasonable rate on and from 20.10.1998. The reasonable rate of interest that the 2nd opposite party would be asked to pay on the facts and in the circumstances of the case cannot be any one other than 12% p.a. We, therefore, direct the 2nd opposite party to pay interest @ 12% p.a. on Rs. 5,527.20 (rounded off to Rs. 5,527/-) on and from 20.10.1998 till realisation.

SO far as the 1st opposite party is concerned, it appears they had acted diligently in delivering the speed post article given to them by the complainant. As already indicated the 1st opposite party received the speed post article on 16.10.1998. The speed post article was delivered to them could not be delivered to the addressee the 2nd opposite party the next day i.e., to say on 17.10.1998. Since that day happened to be a Saturday, an office holiday, 18.10.1998 happens to be a Sunday, another holiday. The next day say 19.10.1998 which happened to be a Deepavali day, a Government holiday. Consequently, the speed post was delivered the next day namely 20.10.1998. In such circumstances, it cannot at all be stated that there was any negligence or deficiency in service on the part of the 1st opposite party in effecting delivery of SPA delivered to them by the complainant for effecting delivery of the 2nd opposite party. The 3rd opposite party, on the facts and in the circumstances of the case, cannot at all be mulcted with liability for deficiency in service on their part. They also acted with due diligence in taking steps to stop payment of the demand draft dated 15.10.1998 for US 120 favouing the 2nd opposite party at the Bank''s New York branch. As indicated earlier. they have given lot of telex message to the New York branch requesting them to stop payment and on the steps so taken by them they received a message from the New York branch stating that the draft had not at all been presented for encashment and they also have noted stop payment advice.

FOR the reasons as above, the 1st and the 3rd opposite parties cannot at all be mulcted with the liability for deficiency in service on their part and if at all the 2nd opposite party alone can be mulcted with the liability for deficiency in service on their part for their misplacement of the draft for US $ 120 and we have quantified the amount to be paid by them in the earlier paragraph in a sum of Rs. 5,277/- with interest thereon @ 12% p.a. from 20.10.1998 till realisation besides a sum of Rs. 750/- for out of pocket expenses. This issue is thus answered. Issue No. 2. In view of our finding on Issue No. 1, the 2nd opposite party is directed to pay to the complainant a sum of Rs. 5,277/- with interest @ 12% p.a. from 20.10.1998 till realisation besides a sum of Rs. 750/- for out of pocket expenses. What remains to be considered is as to what is the amount to be paid by way of compensation by the 2nd opposite party for the mental agony and anguish suffered by the complainant by the misplacement of the draft by the 2nd opposite party. By such act on the part of the 2nd opposite party, the complainant was put to the necessity of taking another draft for the same amount to the 2nd opposite party so as to see that he was allowed to sit for the GRE during the first week of January, 1999. The complainant did comply with such a request of the 2nd opposite party in takaing such a draft and sending the same to them. He was put to such a tantalising situation of running from pillar to post to take another draft to be sent to the 2nd opposite party. For the mental agoney so caused to him, he has to be compensated adequately. Mr. Dharam Priya Das who represented the 2nd opposite party, graciously consented to pay to the complainant a sum of Rs. 5,000/- towards mental agony and anguish caused to him. The amount as suggested by him rather appears to be very reasonable. We, therefore, award a sum of Rs. 5,000/- to be paid by the 2nd opposite party to the complainant for the mental agony and anguish suffered by him. In fine, the complaint is allowed in part ; the 2nd opposite party is directed to pay to the complainant a sum of Rs. 5,277/- with interest thereon @ 12% on and from 20.12.1998 till realisation besides a sum of Rs. 750/- for out of pocket expenses. The 2nd opposite party is further directed to pay to the complainant a sum of Rs. 5,000/- for mental agony and anguish suffered by him. The complaint as against the 1st and 3rd opposite parties shall stand dismissed. We however make no order as to costs on the facts and in the circumstances of the case. The award as made agaisnt the 2nd opposite party shall have to be complied within a period of two months from the date of the order or otherwise the complainant will be at liberty to invoke the wrath of penal consequences of Section 27 of the Consumer Protectuion Act, 1986. Complaint partly allowed.