consumer case(CC) No. CC/54/2006

K.P.Anandakrishnan
...........Appellant(s)

Vs.

2.Customer care centre

3.B ranch Post Master

1,Chief Post Master General
...........Respondent(s)
BEFORE:
1. GOPALAN.K
2. JESSY.M.D
3. PREETHAKUMARI.K.P


Complainant(s)/Appellant(s):


OppositeParty/Respondent(s):


OppositeParty/Respondent(s):


OppositeParty/Respondent(s):


ORDER

IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR

Present:

Sri.K.Gopalan : President

Smt.K.P.Preethakumari : Member

Smt.M.D.Jessy : Member



Dated this, the 7th day of January, 2010

C.C.No.54/06

K.P.Anandakrishnan,

Kannoth Puthiya Veedu,

P.O.Punnad,

Punnad – 670 703. : Complainant

Vs.

1. Chief Post Master General,

Kerala Circle,

Thiruvananthapuram,

PIN – 695 033.

: Opposite Parties
2. Manager,

Customer Care Centre,

Thalassery – 670 102.

3. Branch Post Master,

Branch Post Office,

Punnad – 670 703.

O R D E R
Sri.K.Gopalan, President

This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the Opposite Parties to pay a sum of Rs.2,00,000/- as compensation.

The brief facts of the case of the Complainant are as follows: Complainant applied for a passport on 15.07.2003 after remitting Rs.1,000/- to the Regional Passport Officer, Kozhikode. He could not receive the passport sent by registered post when the postman brought the same to his house on 03.12.2003. Since he was then in Mysore in connection with the employment. Thereafter when he required the passport for the purpose of the employment he made enquiry in the Regional Passport Office, Kozhikode. Then he was informed that his passport was delivered. Complainant immediately enquired in Punnad Post Office and he was informed that the passport was delivered to one Mukundan. On 22.09.2005 Complainant sent complaints to the Manager, Thalassery Postal Customer Care Service Centre and to the Passport officer, Kozhikode. On 20.12.2005 postal inspector came to his house for enquiry. He had also obtained a letter from the Complainant stating that he did not receive the passport. The complainant also made complaint to the Post Master General when there was no action from the side of the Opposite Parties. But even after this complaint no action was taken so far. Many job opportunities received abroad were lost because of non-receipt of passport. Hence this complaint.

Pursuant to the notice Opposite Parties entered appearance and joint version filed for Opposite Parties 1 to 3. The contentions of the Opposite Party in brief are as follows: A Complaint dt. 22.09.2005 regarding non-receipt of a letter containing passport was received by the 2nd Opposite Party on 22.09.2005. The complaint was got enquired and revealed that the concerned speed post article was entrusted for delivery to the Gramin Dak Sevak Mail Deliverer on the same day. As the addressee was not available in his house intimations regarding the arrival of the speed post article was served on 05.12.2003. Finally the article was delivered to a person other than the addressee, who had introduced himself as the brother-in-law of Shri.K.P.Anandakrishnan from Punnad branch Post Office on 08.12.2003. There is no wilful act or default on the part of the Opposite Parties against the interest of Complainant. Complainant has not availed any service from the Opposite Parties on payment. The post office enjoys immunity U/s.6 of Indian Post Office. There is no wilful negligence on the part of the Opposite Parties. Hence to dismiss the complaint.

On the above pleadings the following issues have been taken for consideration.

1. Whether the complaint is maintainable?
2. Whether there is any deficiency on the part of Opposite Party?
3. Whether the complainant is entitled for the remedy as prayed in the complaint?
4. Relief and Cost.



The evidence consists of oral testimony and PWs 1, to 3 & DW1, DW2, Ext.A1, A2 & B 1to B3.



Issues 1 to 4



Admittedly, the speed post article containing the passport of the Complainant was entrusted for delivery to Opposite Party and the article was delivered to a person other than the addressee. Opposite Parties raised the contention that the Complainant had not paid any consideration directly to the postal department but certain payment was paid by passport authority. Passport authority made payment and availed service from the Opposite Party for the purpose of delivery of article to Complainant. Complainant is the beneficiary on receiving article.

Sub Clause (ii) of Clause (d) of Sub Section (1) of Section 2 of Consumer Protection Act provides thus : ”Consumer” means any person who –

(11) heirs or avails of any service 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 service…..”

Complainant herein is the beneficiary. Hence he is a consumer, by which entitled to maintain complaint before the Forum. The status of beneficiary as a consumer is a well settled position of law.

Opposite Parties take shelter under Section 6 of Indian Post Office Act which reads as under:

“The Government shall not incur any liability by reasons of the loss, misdelivery or delay in 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 hereinafter provided, on no officer of the post office shall incur any liability by reason of any such loss, misdelivery, delay or damage under he has caused the same fraudulently or by his wilful act or default”.

It can be seen that the postal authorities conferred that fact that the postal article containing the passport was delivered to a person other than the addressee, Complainant: They have found it was delivered to a person who himself introduced as the brother-in-law of Complainant Shri.K.P.Anandakrishnan from Punnad branch post office on 08.12.2003. Postal authorities who delivered the article had not verified whether or not the person to whom it was delivered, had been authorized by the Complainant to receive the article for and on behalf of him. There comes the question under what provision, rule or direction the registered postal articles delivered to unidentified unauthorized person? Opposite Party has no case that the article was delivered to such an authorized person. It cannot be ignored that there are strict rules to be complied in delivering a registered article. The registered article should not be delivered to an unauthorized person. Hence it is obviously a wilful and negligent act on the part of postal authorities.

The Apex Court in Lucknow Development Authority Vs.M.K.Gupta III(1993) CPJ 7(SC) held that if a public functionary acts maliciously or oppressively and the result is harassment and agony, then, it is not an exercise of power but it is abuse. It further held that ”today the issue is not only of award of compensation but who should bear the brunt. The concept of authority and power exercised by public functionaries has many dimensions. It has undergone tremendous change with the passage of time and change in socio-economic outlook. The authority embowered to function under a statute while exercising power discharges public duty. It has to act to subserve general welfare and common good In discharging this duty honestly and bona fide, loss may accrue to any person. And he may claim compensation which may in circumstances be payable”.

In the recent case Senior Superintendent of Post Office, G.P.O. Building Vs.Sharanjil Bahm reported in 2009(3) CPC 297(NC) Postal Department was found negligent and hence the Senior Superintendent of Post Office directed to pay the amount of Rs.5,000/-. The case of the Complainant cited case is that daughter of the Complainant had completed four years BDS course from Ludhiana and became eligible for Part I National Board Dental Examinations to be conducted by American Dental Association on 16.04.2005, the Complainant sent an envelope containing the application and necessary documents of his daughter through speed post booked by the postal department and sent to the joint commission on National Dental Examination, Chicago, USA. The said parcel was received back by the Complainant with the remarks ‘mis-sent’ and it was in an open and mutilated condition. Subsequently, he again sent the application and other documents by speed box. Then complaint was filed. District Forum awarded compensation and State Commission dismissed appeal upholding the decision of District Forum and finally National Commission held “the Postal Authorities cannot be so negligent as to send the postal article to a country other than the country destination and further assuming that it was sent to some other country instead of redirecting it to the country of destination it was sent to the original addressee. This is nothing but a wilful act and default of the postal department”.

In the case in hand it can be seen that the registered postal article containing the passport of Complainant delivered to a person other than the addressee (Complainant) knowing well that it was not the addressee. In other words the article was delivered to a person who himself introduced as the brother-in-aw of Complainant but having no authorization or letter of consent to receive the article for and on behalf of the Complainant. It is also pertinent to note that no rules regarding the delivery of registered article had been followed in this case. Hence we have no hesitation to hold that this delivery of passport is a wilful act and default of the postal department that amounts to deficiency in service. Opposite Parties are liable to meet the loss suffered by the Complainant. The reports that we are getting from the present day newspapers cause great concern over misuse of passport.

There is no doubt that the Complainant might have suffered financial loss and mental agony. Complainant pleaded that he lost several opportunity of employment in abroad since he was not having passport. The mental tension of a young man of unemployed under this circumstances is quite understandable which cannot be measured in terms of money.

Therefore, in addition to what we have already observed it is necessary to analyze the ground realities so as to fix the quantum of compensation. Complainant deposed in the witness box that the post man came to his house with passport on 05.12.2003 and also stated that he went to passport office on 21.03.2005. In the cross examination for a specific question with respect to this long delay Complainant deposed that he could not make enquiry since he had been employed in a construction company during this period. He further deposed that he made enquiry much later because he got employment visa at that time. He has also deposed in cross examination that has also deposed in cross examination that പാ സ് പോ ര്@ട്ട് കിട്ടാത്തതു കൊണ്ട് വിദേശത്ത് ജോലിക്കുപോകാ കഴിയാത്തതുകൊണ്ട് ജോലി നഷ്ടപ്പെട്ടു.

To another question he answered ജോലി നഷ്ടപ്പെട്ടു എന്നു കാണിക്കുന്ന രേഖ ഹാജരാക്കിയിട്ടില്ല. Passport ഇല്ലാതെ രേഖ ഹാജരാക്കാന കഴിയില്ല.

In the light of this evidence that has come out in cross examination there is no reason to disbelieve the Complainant with respect to the opportunity of his employment visa. The Complainant, to another question in cross examination explained the reason for the delay in filing the complaint. He has explained that it has come to his knowledge that the passport was handed over on 21.03.2005. If the date of knowledge is 21.03.2005 there is no delay attributed in filing the above complaint. On perusal of the bundle it could be seen the official letter sent to the complainant containing the message that ”article in question was delivered to a person other than the addressee from Punnad Branch Post Office contravening the post office rules” seen sent by the Manager, Customer Care Centre, Thalassery to Shri.K.P.Anandakrishnan. Even if the date of this official letter is taken into account, ignoring the date of delivery of the same to Complainant there is no merit in raising the question of delay in filing the complaint.

In the light of the available evidence on record we hold that there is wilful negligence amounting deficiency in service on the part of Opposite Parties and Complainant is entitled to an amount of Rs.50,000/- (Rupees fifty thousand) as compensation The Complainant is also entitled for Rs.1000/- as cost of this proceedings. The issues 1 to 4 are found in favour of Complainant. Order passed accordingly.

In the result, the complaint is allowed directing the Opposite Parties to pay an amount of Rs.50,000/- (Rupees fifty thousand) as compensation and a sum of Rs.1000/- as cost of this proceedings within one month from the date of receipt of this order, failing which the Complainant is entitled to execute the order as per the provisions of Consumer Protection Act.