PER: HON’BLE MR. SAMARESH PRESAD CHOWDHURY, PRESIDING MEMBER
The instant appeal Under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act ‘ ) is at the behest of the Opposite Parties to impeach the Judgement/Final Order dated 15.11.2017 passed by the Ld. District Consumer Disputes Redressal Forum, Hooghly at Chinsurah ( for short, Ld. District Forum ) in Consumer Complaint No.111/2015. By the impugned order, the Ld. District Forum allowed the complaint lodged by the Respondent Dr. Sasadhar Panda Under Section 12 of the Act with certain directions upon the Opposite Parties/Appellants like – (a) to pay Rs.3,000/- as compensation; (b) to pay Rs.2,000/- as litigation cost with a further direction upon OP No.2 i.e. the Superintendent of Post Office to comply with the order within 30 days from the date of the order in default Rs.200/- per day to be paid till the realisation of the amount.
The Respondent herein being Complainant lodged the complaint before the Ld. District Forum asserting that on 07.03.2014 he had sent an amount of Rs. 1,000/- through EMO to one Sri Himangshu Chakraborty of Vill + P.O.- Gobindapur, Rathtala, via Shyampur, Dist- Howrah, Pin-711314 from Chinsurah Head Post Office vide EMO No.139694140307026568. After two weeks from the date of sending of the same, he came to know that the same was not reached to the payee. The complainant insisted the addressee to contact the local post office on a regular basis. In the meanwhile, the complainant lodged a complaint with Superintendent of Post, North Hooghly Division, Chinsurah on 28.03.2014. In the first week of April, the complainant received a letter from the said Himangshu Chakraborty blaming the complainant as a liar alleging that he did not send any money. Ultimately, the EMO was delivered on 05.05.2014. The complainant has alleged that due to unusual delay in sending the EMO, he has suffered a lot. Hence, the complainant approached the Ld. District Forum with prayer for several reliefs including compensation, litigation cost etc.
The Appellant No.2 being Opposite Party No.2 by filing a written version has admitted the factum of sending EMO of Rs.1,000/- by the complainant on 07.03.2014 which was received by the addressee on 05.05.2014 and no liability can be attributed upon them as they acknowledged the letter given by the complainant and was in track to locate the EMO and informed the same to the complainant on 22.05.2014.
After assessing the materials on record, the Ld. District Forum by the impugned order allowed the complaint with certain directions upon the Opposite Parties, as indicated above. To challenge the said order, the Opposite Party No.2 has come up in this Commission with the present appeal.
We have heard Mr. Bikramjit Bhattacharjee, Ld. Advocate for the Appellant. None appears for the Respondent when the record was taken up for hearing. We have scrutinised the materials on record including the brief notes of arguments filed on behalf of appellant.
Undisputedly, on 07.03.2014 the Respondent sent one EMO of Rs.1,000/- to one Sri Himangshu Chakraborty on account of marriage ceremony of the daughter of payee in his permanent address at Village + P.O.- Gobindapur, Rathtala, via-Shyampur, Dist- Howrah, Pin- 711314 from Chinsurah Head Post Office vide EMO No.139694140307026568. However, the said EMO could not reach the destination within time. The respondent has made a written complaint to the appellant on 28.03.2014 for non-receipt of the said EMO by the addressee. In the meanwhile, in the 1st week of April, 2014 the addressee complaint that he had personally gone to Gobindapur Post Office 5/6 times but he was told that no EMO had been sent to him by anybody. Accordingly, Hinmangshu blamed the respondent and had made several remarks in the said letter causing severe mental pain to the respondent who have been suffering from hypertension and ischemic heart disease for the last 10 years. Ultimately, the said EMO was delivered on 05.05.2014.
On scrutiny of written version, it would reveal that the Appellant did not explain the reasons for which there has been a delay for about two months in reaching one EMO from one destination to another in a short distance of about 50 kilometers. In the written version, it has been stated that the services rendered by the Post Office are merely statutory and there is no contractual liability establishing the Post Office and running the postal services and the Central Government performs a government function and the government does not engage in commercial transaction and as such the question of deficiency in services does not arise.
Mr. Bikramajit Bhattacharjee, Ld. Advocate for the Appellant has submitted that the Ld. District Forum has failed to appreciate that Section 48(c) of the Indian Post Office Act has categorically mentioned that no legal proceeding shall be instituted against the government or any officer of the post office if there is any delay caused in payment of money order. To fortify his submission, Ld. Advocate for the appellant has placed reliance to a judgement of Tamil Nadu State Consumer Commission in FA/443/2010 [Post Master Nagakudaiyan – Vs. – N. Dhayanithi]; a judgement of Hon’ble National Commission reported in I (2000) CPJ 28 [Post Master Imphal & Ors. – Vs. – Dr. Jamini Devi Sagolband]; another decision of Hon’ble National Commission reported in II (2011) CPJ 9 [Union of India – Vs. M.L. Bora].
Placing reliance to a decision of Hon’ble National Commission reported in I (2017) CPJ 115 [Anita Rani – Vs. – Department of Post & Anr.] the Ld. Advocate for the appellant has contended that the Ld. District Forum has failed to consider that there was neither any fraud or wilful act or default or negligence from the side of the appellant towards the respondent rather the appellant’s office was continuously in touch with the respondent and also entertained him diligently because when the respondent lodged a written complaint to the appellant, the office of the appellant sent him written replies and never ignored him. He has further contended that the respondent has never stated that the appellant has ever committed any fraudulent activity on him.
At the outset, for proper appreciation of the dispute, it would worthwhile to reproduce the provisions of Section 6 of Indian Post Office Act which provides –
“The Government shall not incur any liability by reason of the loss, mis-delivery or delay 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 hereinafter provided, and no officer of the Post Office shall incur any liability by reason of any such loss, mis-delivery, delay or damage, unless he has caused the same fraudulently or by his wilful act or default”.
In the case of Post Master General, West Bengal Circle, GPO – Vs. – Dipak Banerjee & anr. reported in IV CPJ 329 (NC) the Hon’ble National Commission has observed that the Section has its two parts, - (1) the first part provides complete immunity to the Government, unless some liability is undertaken by the Government under the statue in express terms. Similar immunity is extended to the officers of the Post Office and (2) the second part carves out an exception to the blanket immunity to its officer and provides that they incur liability if it is shown that the loss, mis-delivery, delay or damage etc. had been caused fraudulently or by the wilful act or default of such an employee. Thus, a plain reading of the Section leaves little scope for doubt that unless it is proved that the loss, mis-delivery or delay has been cause fraudulently or by a wilful act or default on the part of its officer, no claim would lie against the Postal Department merely by reason of the loss, mis-delivery or delay or damage to the postal article, as the case may be, in the course of transmission of the article by post.
However, almost a similar case was considered by a Five Member Bench of the Hon’ble National Commission reported in 2001 (3) CPR 189 [Post Master, Ranipet H.O. & Anr. – Vs. – Shri N.B. Janaki Raman]. In that case, a money order sent by the complainant was delivered to the payee after three months. In a complaint filed by him, the Postal Department took the plea that the complaint was barred under Section 48(c) of the Indian Post Office Act, which provides that no suit or other legal proceedings shall be instituted against the Government or its officers, inter-alia, for delay in payment of any money order, other than the fraud or wilful act or default of such officer. The State Commission, however, rejected the contention and directed payment of compensation to the complainant. Being aggrieved, postal department preferred an appeal before the Hon’ble National Commission. Dismissing the appeal, the Hon’ble National Commission has observed –
“A bare perusal of Section 48(c) would show that it does not give blank immunity to the appellants. If there is a fraud or wilful act or default on the part of any officer of the post office, appellants will certainly be liable. It may be that fraud or wilful act has to be proved by the complainant and so also the default. But when the default is so extensive like in the present case, no proof of evidence on the part of the complainant is required to be proved the default on the part of the post office. As to what is the wilful or default, we need not go to any treatise on the interpretation of this terms or to any judgement for the purpose. We have to see from a consumer point of view as to what is wilful or default when interpreting a particular provision. As a matter of fact default of two months in sending the telegraphic money order could also be a wilful act. No circumstances has been brought on record bythe appellant to show that there has not been any wilful act or default on the part of any of its officers. For this gross act of default in not sending the telegraphic money order in time after receiving charges of the same respondent has certainly suffered a great deal of anguish and mental harassment”.
In the instant case, it is quite evident that the Postal Department has received Rs.50/- for transmission of EMO of Rs.1,000/- from respondent in order to reach its destination within shortest possible time. But the appellant took two months time to send it in its destination. It certainly causes unnecessary delay causing tremendous mental agony and anguish of the respondent. Section 6 of Indian Post Office Act, 1898 being pari materia with Section 48(c) of the said Act, particularly when the appellant has failed to brought on record that there has no been any wilful act or default on the part of any of its officers, we have no hesitation to hold that the Ld. District Forum was quite justified in holding that the post office was liable for this act of negligence and rightly imposed compensation of Rs.3,000/- and litigation cost of Rs.2,000/-.
However, the Ld. District Forum had no occasion to impose penalty of Rs.200/- per day which was beyond averment in the petition of complaint or in the prayer clause of the petition of complaint. It is well settled that fair procedure is the hallmark of natural justice and an affected party has every right to answer the allegation levelled against them. Since the order of penalty of Rs.200/- per day was beyond the pleading, that part of order is liable to be set aside.
In view of the above, the instant appeal stands disposed of with the directions upon the appellant/OPs to pay Rs.3,000/- as compensation and Rs.2,000/- as litigation cost aggregating of Rs.5,000/- in favour of respondent/complainant within 60 days from date, in default the amount shall carry interest @ 9% p.a. from this date till its realisation.
With the above observations and directions, the instant appeal stands disposed of.
The Registrar of the Commission is also directed to send a copy of the order to the Ld. District Consumer Disputes Redressal Forum, Hooghly at Chinsurah for information.
