IN THE STATE COMMISSION: DELHI

(Constituted under section 9 clause (b) of the Consumer Protection Act, 1986)



Date of decision: 04.03.2009
First Appeal No.2009/125

(Arising from the order dated 24.02.2009 passed by District Forum(North) Tis Hazari, Delhi in Complaint Case No.867/2007)



Sh. Rajendra Nath Pandey, Advocate … Appellant

R/o House No.23, Gali No.37A/3,

B-Block, Kaushik Enclave, Burari,

Delhi -110084.



Versus



1. Senior Supd. Of Post …Respondent

(North Division)

Civil Lines, Delhi -54.



2. Post Master, Burari Post Office,

Burari, Delhi -84.



CORAM:


Justice J.D.Kapoor … President
Ms. Rumnita Mittal … Member



1. Whether reporters of local newspapers be allowed to see the judgment?



2. To be referred to the Reporter or not?



Justice J.D.Kapoor (Oral)



1. Feeling aggrieved of the impugned order dated 24.02.2009 passed by the District Forum, whereby the complaint of the appellant, who is an advocate by profession, seeking compensation from the respondent for non-delivery of registered letter sent to him from Bombay was dismissed firstly on the ground that the appellant is not a consumer as he has not paid any consideration for availing any services to the respondent and secondly that the letter was delivered to the appellant on 04.06.2007 at his and there was no deficiency in service on that account.

2. Relevant facts leading to the impugned order in brief are that on 10.07.2007, three registered post letters from Amrit Vihar was brought to the appellant’s house in which one registered post was sent to the appellant on 30.05.2007 from Mumbai as information of legal action against the appellant's client. After 40 days of receipt of this letter the appellant came to know that legal action against appellant’s client is started due to forged delivery of registered post notice by post office officials of appellant’s area. It was also pleaded by the appellant that two other registered post letters were not delivered to the appellant by the respondent. It was also pleaded that due to deficiency in service on the part of postal department the appellant’s reputation among his client and friends is affected and the appellant has suffered professional loss due to forged delivery by forged signature by postman without delivering the registered post to the appellant. It was further pleaded that respondent be directed to deliver the registered posts with due responsibility within the prescribed time limit in future and respondent be directed to pay the legal cost.

3. In reply the version of the respondent was that the appellant has not come before District Forum with clean hands as there is no cause of action for the appellant against the respondent. The appellant is not a consumer and has no locus standi to file the present complaint against the respondent. No cause of action has arisen to the appellant against the respondent as the registered letter No.09 reportedly booked on 30.05.2007 at Mumbai and addressed to the appellant was issued to postman concerned for its delivery to address. It has been duly delivered to the addressee on 04.06.2007. It was further pleaded that the Department of Post is exempted from liability under section 6 of the Indian Post Office Act for loss, misdelivery, delay or damage of the postal articles and the present complaint is liable to be dismissed. It further pleased that in section 6 of the Indian Post Office Act it is mentioned that the Government shall not incur any liability by reason of the loss, mis-delivery or delay or damage to any postal articles in course of transmission by post, except in so far as such liability may in express terms be undertaken by the Central Government. It was further pleaded that the photocopy of envelops which the appellant has submitted are not of registered letters and they re the photocopies of the envelopes of speed post articles. The appellant has not mentioned the contents of the letter. It was also pleaded that mail is delivered regularly and as per documentary evidence available with the respondent the registered letter was delivered to the addressee on 04.06.2007 under clear receipt and there is no cause of action for the appellant to file the present complaint.

4. As is apparent from the facts the appellant neither did paid any consideration to the respondent for availing service of delivery of registered letter nor did he avail the services of the respondent for delivery of the aforesaid registered letter in order to bring himself within the definition of consumer as defined by section 2(1)(d)(ii). The appellant has placed reliance upon the following decisions of National Commission: -

(i) Superintendent of post Offices & Ors. Vs Upovokta Surakshya Parishad III (1996) CPJ 105 (NC).

5. We are afraid the ratio of the aforesaid decision is not applicable in the instant case. The consumer has been defined as under:

[hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person,.”



6. The service has been defined by section 2(1)(o) as under:

“service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical, or other energy, board of lodging or both, [housing construction] entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.”





7. As is apparent service of delivery of registered letters to the appellant was availed by the person who had sent these letters to the appellant from Mumbai post office and it was that person who had availed the services of the respondent from Mumbai against consideration. Merely because the letters were addressed to the appellant does not bring him within the ambit of consumer. There are following three elements to become consumer one to hire or avail service any services for a consideration which has been paid or promised or partly paid and partly promised, second under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, third is under any system of deferred payment, when such services are availed of with the approval of the first mentioned person.

8. It was not the case where the services were availed by other person for the benefit of the appellant. Even if we assume that the appellant is a consumer because of the aforesaid service having been availed for his benefit still the finding of fact returned by the District Forum as to the delivery of letter on 04.06.2007 does not suffers from any infirmity. This finding was returned on the basis of record from the calendar for the year 2007, which shows that the District Courts were closed for summer vacation form 04.06.2007 to 30.06.207 and High Court was also closed from 01.06.2007 to 30.06.2007. However, neither the appellant was the addressee of the aforesaid two letters nor the sender of these letters, therefore has nothing to do with that and it was in view of this that the District Forum observed that the plea of the appellant that since he has received the registered letter on 10.07.2007 whereas it was dispatched on 30.05.2007 from Mumbai which was at Sr. No.9, and therefore the respondent is deficient in service was repelled as the respondent filed on record a photocopy of their delivery slip which was dated 04.06.2007, in which the registered letter number 9 addressed to the appellant is mentioned and as per this, it is given to one Sh. Rajender on 04.06.2007 that the delivery was presumed.

9. Merely because the signature on the delivery slip were in Hindi does not mean that the letter was not delivered to the person concerned. Curious plea has been taken by the appellant that he has admitted that he has received this letter but his contention is that the signatures on the delivery slip is not his as he was in the court being an advocate during day time on that date and the signature on the delivery slip have been shown in Hindi and an advocate would not sign in Hindi. This plea was rightly repelled by the District Forum by observing that the contention cannot be accepted as one can sign in Hindi or in English or in any language and simply because he is an advocate and therefore would not have signed in Hindi cannot be accepted.

10. Thus from any aspect we may examine the matter, the impugned order does not suffer from any infirmity and the appeal being highly misconceived and misdirection is dismissed in limine.

11. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to Record Room.

Announced on 04th day of March 2009.