Union of India vs Mohammad Ashra Thakar

Bhawani Singh, Chief Justice.

This appeal is directed against the order of Jammu and Kashmir State Consumer Protection Commission (hereafter for short Commission)

dated July 01, 1996 arising out of the Complaint No. 7/1992.

Complainant states that after obtaining Law Degree, he prepared himself for Indian Administrative Service Examination. He worked hard and

burnt mid nigh oil, purchased lot to reading material of various kinds by spending lot of money on them and for coaching. When opportunity came,

he got application form, purchased Cross Indian Postal Order for Rs. 30/ in favour of Union public Service Commission and registered the post on

January 22, 1992.

When he did not receive anything from Union Public Service Commission, he ascertained the matter from General Post Office, Srinagar where

he was told that the letter had been registered against No. 2765 dated 22011992 and was forwarded to Delhi for delivery. Later, he received

communication from Union Public Service Commission dated 24041992 stating that his application could not be entertained as it was received on

521992, when the last date for receipt of application was 321992.

Complainant alleges that by the callous and negligent act of the respondents in the discharge of functions, he has been deprived of the last

chance for appearing in the examination at the cost of hard work and huge expenses. But for the culpable negligence of the respondents, this loss

could not have been there.

Respondent's case is that there had not been intentional delay in the delivery of letter and whatever has happened, that was due to circumstances

beyond their control. The letter was packed for final dispatch in T.B. 1/2 for Palam TMO on 2401 1992. It could not be sent by Airlines, since the

authorities were not accepting the mail since 16091991 due to security reason and the mail was being sent to Jammu through surface transport and

thereafter by Railway Mail Service. It is pointed out that road remained blocked from 24011992 to 31011992 and State Road Transport

Corporation Crew lifted the mail on 121992 after the traffic was restored on the highway. Complainant should have sent the application through

Speed Post, a facility available at General Post Office. Immunity from liability has been placed under Section 6 of the Indian Post Office Act, 1898

for loss, misdelivery, delay or damage to any postal article in the course of transmission.

Commission examined some witnesses and decided the case in favour of the complainant and against the respondents by ordering compensation

of Rs. two lac for irreparable loss and injury caused to. him due to deficient service by the respondents after holding that respondents were guilty

of negligence and dereliction of duty and protection of Section 6 and provisions of Indian Post Office Act, 1898 was not available on the evidence

in the case.

Heard learned counsil for parties. Selection 6 of Indian Post Office Act, 1998 reads

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 in so far as such liability may in express terms be undertaken by

the Central Government as hereafter 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 willful act or default.

It is necessary to quote the definition of deficiency in Jammu and Kashmir State Consumers Protection Act, 1987:

Any default, imperfection, short coming, or inadequacy in the quality, nature and manner of performance which is required to be maintainable by

or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation

to any service.

There is no quarrel so far as definition of deficiency is concerned. The question is whether facts of the case pointed out any deficiency on the

part of the respondents in extending the service. Similarly, for burdening the respondents with liability under Section 6 of the Indian Post Office

Act, 1898, it has to be proved that the loss, misdelivery or delay or damage to any postal article in the course of transmission by post was the

result of fraudulent or willful act or default of the respondents. For appreciating both the provisions, evidence has to be examined carefully.

Complainant should have been extravigilant for sending his application, in case he was really interested to appear in that examination. When

National Highway from Srinagar to Jammu closes for traffic due to heavy snowfall or landslide, every one comes to know of it through media or

otherwise. Complainant should have known it. It is rightly submitted by Appellant's counsel that he should have sent the application through Speed

Post, a facility available at General Post Office, Srinagar and the complainant admits that he does not know what Speed Post is. Further, learned

counsel for Appellants places before us Confidential Proceedings of Post Master General, Srinagar dated 18091991, which demonstrate that after

joint meeting of DIG, Airport (Security), DIG, Security, Srinagar, Station Manager, Indian Airlines, it was decided to discontinue dispatch of Air

Mails from Srinagar Airport to Delhi for security reasons and it was decided to send the mails to Jammu by surface and therefrom to Delhi by

Air/Surface. Further, Appellants also produced certificate from Manager, SRTC through witness that National Highway was blocked from

24011992 to 31011992 due to heavy landslides as per office records. This document has been erroneously rejected by the Commission, instead

reliance has been placed on the certificate of Station Manager, Indian Airlines, Srinagar Airport dated 20091993 that mail was not refused. This

certificate is unsatisfactory, since it does not reflect the correct postilion as per proceedings of PMG, Srinagar dated 18091991 in which Station

Manager, Indian Airlines partcipated. It appears, Manager, Indian Airlines, Srinagar Airport did not know about the meeting dated 18091991.

There is also statement by witness Abdul Rashid, Sorting Assistant, GPO, Sorting Office, Srinagar that list of all the registered letters and articles

sorted out was prepared. The total number of 1st Class Registered Letters was 143 on that date and the number of complainant Registered

Letters was 2765. All of them were sent by the same dispatch. List of these letters is filed. Reading all the material together, we have no manner of

doubt that the Appellants did not commit willful default in the transmission of the document. It was received on 22011992. Road was closed from

24011992 to 31011992. Mail was dispatched on 121992 from Srinagar to Jammu. It was received on the same day and sent to Delhi on 221992

where it reached on 421992. It was delivered on 521992. With this background, it cannot be said that there was any kind of willful default or

delay on the part of Appellants in dealing with the matter. With respect to delivery by Air, matter has already been discussed.

Commission order has been perused carefully. We find, that Commission has not appreciated the matter correctly. Dependable and

satisfactory evidence produced by the Appellants has been rejected for unjustifiable reasons and that of complainant accepted, though it was infirm

and discrepant, with the result that conclusions, which are not in consonance with provisions of law applicable in this case, have been drawn.

Therefore, this Appeal is allowed, Complainant No. 7/1992 is dismissed.

Cost on parties.