Union of India vs D. VENKAIAH

THE complainant in C.D. 198/95 District Forum, Ranga , Reddy on 25.4.1995 sent a demand draft purchased from S.B.I. Murudu for Rs. 50,000/- in favour of his brother''s son Brahmaiah of P & T Colony, Dilsukhnagar for purchasing some cloth at Hyderabad and to send the cloth to him. As he did not receive the cloth or any communication from Brahmaiah, a complaint was given on 12.6.1995 to the Superintendent of Post Offices, Osmanabad and Post Master, Murudu and sent a telegram to the Post Master, Dilsukhnagar Post Office, on 3.7.1995, for which a reply was received from Superintendent of Post Offices, Osmanabad regretting for the loss of registered letter. THEreafter, the complainant submitted representations to the Commissioner of Police and Post Master General etc., and learnt that the registered letter reached the post office, P & T Colony, Dilsukhnagar, Hyderabad and that opposite party No. 3 who is a contingent postman attached to the second opposite party stole the registered cover on 3.5.1995 and opened. a S.B. Account on 31.5.1995 with the opposite party No. 4 i.e. Prudential Co-op. Urban Bank Ltd., and deposited the draft in the account opened by him and in the name of Sri Brahmaiah (addressee) realised the proceeds and withdrew Rs. 50,000/- on 7.6.1995.

ALLEGING that there is deficiency of service on the part of the opposite parties 1 and 2 i.e. Union of India represented by Chief Post Master General, Abids, Hyderabad and (2) Post Master P & T Colony, Dilsukhnagar, (3) B. Seshagiri Rao, contingent employee in opposite party No. 2 Post Office, and (4) Branch Manager, Prudential Co-op. Urban Bank Ltd., Hyderabad, the above complaint was filed to direct all the opposite parties jointly and severally to refund Rs. 50,000/ with interest, compensation and costs. In their version, the opposite parties 1 and 2 stated that the complainant being the Assistant Secretary, Revenue Department cannot run any business, that the registered letter was received and entrusted to opposite party No. 3, a contingent postman attached to opposite party No. 2 for delivery and they came to know in the course of investigation, the contingent postman admitted the fact of fraudulent misappropriation of Rs. 50,000/- by encashing the same and that opposite party No. 4 permitted the opposite party No. 3 to open an account and to withdraw cash without following the procedure, that the opposite party No. 3 played fraud on opposite parties 1 and 2 with the connivance of opposite party No. 4 and hence there is no deficiency in service on the part of the opposite parties 1 and 2 and that Section 6 of the Indian Post Office Act, 1898 is a bar to maintainability of the complaint and as per the provisions of Clauses 184 and 172 of Schedule II of Post Office Guide Part-I the registered letter in which demand draft was sent by the complainant is compulsorily insurable, and as the complainant did not insure the cover, the opposite parties 1 and 2 are not liable to pay any amount.

The opposite party No. 3 in his counter stated that the registered letter was received in the post office on 28.4.1995 and one Smt. P. Krishna Kumar worked as a registration delivery clerk on that day and was shown as accused No. 2 in the FIR given to the police and she is not made a party in these proceedings, that he went on leave from 20.4.1995 to 30.4.1995 and that it is not known why the registered letter was not sent for delivery from 20.4.1995 to 3.5.1995 when the theft is alleged to have been committed. The third opposite party further stated that he is in no way responsible for the loss of registered letter and that S.B. account was opened in the name of one Brahmaiah.

THE 4th opposite party in its version stated that the complaint is not maintainable either on facts or in law and that the complainant is not a consumer so far as the opposite party No. 4 is concerned. It was further stated that on 31.5.1995 a new branch was opened at Mehdipatnam and no introductions were taken for accounts opened by the customers including opposite party No. 3, and the opposite party No. 3 deposited the amount and withdrew the D.D. amount on 7.6.1995 and prayed for dismissal of the complaint. No oral evidence was adduced by both the parties. On behalf of the complainant Exs. A-1 to A-8 were marked and on behalf of the opposite parties Exs. B-l to B-7 were marked.

THE District Forum on a consideration of the documentary evidence held that the registered cover containing draft for Rs. 50,000/- reached post office at Dilsukhnagar. THEreafter according to the opposite parties 1 and 2, it was entrusted to opposite party No. 3 and the third opposite party committed fraud on them and took away the D.D. and encashed the proceeds by opening an account by himself in the name of the Brahmaiah in opposite party No. 4 branch and hence Section 6 of the Indian Post Office Act, 1898 will not apply as there is fraud and wilful default on the part of the contingent postman (Opposite Party No. 3). It further held that although the opposite parties 1 and 2 contended by placing reliance on Clauses 172 and 174 of Schedule I of Post Office Guide Part-1 that unless the cover was insured, they are not liable to pay any amount, but as the learned Counsel for the opposite parties 1 and 2 did not supply the book containing the said clauses, the District Forum could not express any opinion on this contention. Since the complainant has proved that he sent a registered letter and it was received by the opposite party No. 2, the District Forum held that there is deficiency of service and directed payment of compensation of Rs. 50.000/- by opposite parties 1 and 2 with interest at 18% p.a. from 1.11.1995 and dismissed the complaint as against the opposite parties 3 and 4. Aggrieved by the said order, the opposite parties 1 and 2 preferred this appeal. The complainant sent a registered letter on 25.4.1995 to his brother''s son Brahmaiah is not in dispute. According to the opposite parties 1 and 2 such letter was received in the post office and thereafter its movements were not traced and that in the enquiry and investigation, the contingent postman admitted the fact of fraudulent misappropriation of Rs. 50,000/-by encashing the said demand draft. But it is contended by the learned Counsel for the appellants that Section 6 of the Indian Post Office Act, 1898 is a bar to maintainability of the complaint. Section 6 of the Indian Post Office Act read as follows: Exemption from liability for loss,'' misdelivery delay or damage. "The Government shall not incur any liability by reason of the loss, misdelivery or delay of, or damage to any postal article in course of transmission by post, except inso-far as such liability may in express terms be undertaken by the Central Government as hereinafter provided, and 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."

IN the instant case the first and second opposite parties admitted the receipt of the registered letter, but stated that its movements were not traced thereafter and their enquiry revealed that the third opposite party fraudulently and wilfully took away the cover and misappropriated the proceeds by encashing the same from the opposite party No. 4 by himself opening an account in the name of Brahmaiah. It is, therefore, the case of the opposite parties 1 and 2 that due to illegal and fraudulent activities of the opposite party No. 3, a contingent employee the further movements of the registered letter could not be traced and that the third opposite party opened an account with the opposite party No. 4 in the name of Brahmaiah and encashed the same. Since the disposal of the cover could not be traced and as the contingent employee fraudulently encashed the draft, we are satisfied that the opposite parties are not protected under Section 6 of the INdian Post Office Act, 1898.

RELIANCE is placed on the decision of National Commission in Presidency Post Master and Another v. Dr. U. Shankar Rao, II (1993) CPJ page 141 (NC), wherein the National Commission held that the opposite party in that case was protected under Section 6 of Indian Post Office Act, but that case does not relate to any fraudulent or wilful act on the part of any Officer of the post office. But in the instant case even according to the opposite parties 1 and 2, the contingent employee indulged in illegal and fraudulent activities and he was handed over to the police. We are, therefore, satisfied that the aforesaid decision has no application and the opposite parties 1 and 2 cannot take shelter under Section 6 of the Indian Post Office Act. Moreover in the instant case the registered cover reached the post office at Dilsukhnagar and thereafter its movements were not traced. According to the opposite parties 1 and 2 this cover was taken away by opposite party No. 3, who is a contingent employee of opposite party No. 2 and he fraudulently encashed the demand draft. It, therefore, cannot be said that the cover was lost during the course of transmission. The submission of the learned Counsel for the appellants that since the cover contains the demand draft, it requires insurance and the complainant sent the cover without insurance and hence there is no deficiency of service on the part of the opposite parties 1 and 2, cannot be accepted. The learned Counsel relied on Section 184 of the Post Office Guide Part-1 of Schedule II. According to the said clause, coin, bullion, platinu, precious stones, jewellery, government currency notes or bank notes and articles of gold or silver may be sent by post only in insured letters/ insured parcels, and if they were found uninsured in course of transmission by post, it will be either intercepted or returned to the sender or forwarded to the destination and delivered to the addressee subject to payment of two rupees. Under Sub-clause (2) the insurance is also compulsory for atleast the amount specified for recovery from the addressee in the case of all value payable articles. Since the demand draft mentioned above falls within the description, of coin, bullion etc., mentioned in Clause 184, it cannot be said that there is any deficiency of service on the part of the opposite parties. We do not see any force in the aforesaid contention. Clause 184 mentions Government currency notes or bank notes sent in the cover are not currency notes.

The Collins Dictionary of 1994 edition mentions that the bank note is a promissory note especially the one issued by Central Bank serving as money. The demand draft or note is mentioned as bill of exchange i.e. payable on demand also called sight bill. It is, therefore, clear that the demand draft is not a bank note and is not one of the items included under Clause 184 which have to be compulsorily insured when they were sent by post.

THE learned Counsel for the appellant invited our attention to Clause 182 which says that to the sender of insured postal article, compensation will be paid only not exceeding the amount for which the article is insured for the loss of postal article or any of its contents or for any damage caused to it in the course of transmission by post, provided that the compensation in no case exceeds the value of article or any of its contents lost, and that no compensation is payable where the insured article contains Government currency notes/bank notes etc., and has not been insured for the actual value of the contents. This clause has no application to the instant case as the cover contains only a demand draft and is not a currency note or a bank note or gold coin etc. It is next contended that under Clause 170, the complainant is entitled for payment of compensation only upto a limit of Rs. 50/- for the loss of any inland letter, packet or parcel or its contents or for any damage caused to it in the course of transmission by post, and hence even if it was held that there is deficiency of service on the part of the opposite parties 1 and 2, the complainant is entitled to compensation upto a limit of Rs. 50/-. But we are afraid that Clause 170, has no application to the compensation to be granted by the Fora constituted under the C.P. Act for the loss caused to the complainant. Clause 170 ''compensation'' reads as follows: The Head of the Circle may grant to the sender, or at his request to the addressee solely as a set of grace, and in consequence of any legal liability compensation upto a limit of Rs. 50/- for the loss of any inland letter, packet or parcel, or its contents or for any damage caused to it in the course of transmission by post subject to the following conditions: (a) that the application for compensation shall have been made within 3 months of the date of posting of the article in case of loss of the article, and within one month of the date of delivery of the article in case of loss of contents or damage; (b) that the amount of compensation shall not exceed the actual amount of the loss or damage and that such amount can be referred directly to some loss or damage; (c) that the decision of the Director-General on all questions of compensation shall be final.

These clauses merely empowers the Head of the Circle to grant as a set of grace and in consequence of any legal liability the compensation upto Rs. 50/-. It does not limit the power or jurisdiction of the Fora constituted under the C.P. Act to grant compensation of more than Rs.50/- in case it finds that there is deficiency of service and the complainant proves the actual loss sustained by him.

IT is next contended by the learned Counsel for the appellants that the District Forum ought not to have directed payment of interest at 18% p.a. by the opposite parties 1 and 2 as the loss cannot be solely attributed to opposite parties 1 and 2 alone. IT is true that but for the fourth opposite party not insisting on the photograph of the account holder and also introduction from another account holder the third opposite party could not have opened the account in the name of one Brahmaiah and encashed the draft of Rs. 50,000/-. Thus there is negligence on the part of the 4th opposite party also, in flouting all the norms and permitting the third opposite party to open an account which enabled him to open an account and withdraw a sum of Rs. 50,000/- covered by the draft. In these circumstances, the opposite parties 3 and 4 are also equally responsible for the loss of Rs. 50,000/-. We are, therefore, satisfied that payment of Rs. 10,000/- by way of compensation by the opposite parties 1 and 2 will meet the ends of justice. In the result we modify the order of the District Forum and direct the opposite parties 1 and 2 to pay compensation of Rs. 10,000/- (rupees ten thousand only with interest at 18% p.a. from 1.11.1995 till payment. There shall be no order as to costs in this appeal. The appeal is disposed of accordingly. Order modified.