KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No.01/2016

JUDGEMENT DATED: 10.11.2022

(Against the Order in C.C.No.185/2014 of CDRF, Kollam)

PRESENT:

APPELLANT:

Vs.

RESPONDENT:

JUDGEMENT

SRI. T.S.P. MOOSATH : JUDICIAL MEMBER

          The opposite party in C.C.No.185/2014 of the Consumer Disputes Redressal Forum, Kollam (in short the District Forum) has filed the appeal against the order passed by the District Forum by which the opposite party was directed to pay Rs.25,000/-(Rupees Twenty Five Thousand) as the financial loss caused to the complainant and Rs.15,000/-(Rupees Fifteen Thousand) as compensation to the complainant.

          2.       The averments contained in the complaint in brief are as follows:

On 23.10.2013, the complainant sent a packet containing medical books along with clothes, food articles etc. to her daughter Arya Jayasree a student of MBBS in Wuhan Hubei province in China by Foreign Registered Parcel through the opposite party.  It was after making due enquiries with the opposite party that the delivery will be effected within fifteen days from the date of dispatch, the son of the complainant had handed over the packet to the opposite party and paid Rs.4,594/-(Rupees Four Thousand Five Hundred and Ninety Four).  To the surprise of the complainant, delivery of the parcel was not effected even after the stipulated and promised date of fifteen days.  Hence the complainant herself and her son contacted the opposite party personally on several occasions.  But there was no communication from the opposite party.  Thereafter the complainant made a written complaint and she got the reply that an enquiry was going on and progress would be intimated accordingly in course of time.  The act of the opposite party amounts to negligence and utter deficiency in service.  The complainant is entitled to a total sum of Rs.25,000/-(Rupees Twenty Five Thousand) towards the financial loss and Rs.25,000/-(Rupees Twenty Five Thousand) as compensation for the mental agony caused to the complainant due to non-delivery of medical books for the MBBS examination of her daughter.

          3.       The opposite party filed version raising the following contentions:  On receipt of complaint made by the complainant the opposite party made enquiries and as per the information from the Kolkata RMS Division, the article was forwarded to China on 02.11.2013 and after that no updates were made available in the web portal.  Subsequently, the complainant made another complaint and a detailed report from the Kolkata RMS Division was obtained. As per the report the parcel arrived at Beijing on 19.11.2013 and was forwarded to Wuhan on 20.11.2013.  The Foreign Parcel had reached China and further disposal is not available.  As far as India Posts is concerned it gave service as per Rules and present situation is beyond their control and the Department is taking all necessary efforts to get a report from the Foreign Postal Administration.  The opposite party has not done anything against the interests of the complainant, but did all possible efforts to despatch the parcel to China without delay.  There is no deficiency in service on the part of the opposite party.  So the complaint is to be dismissed.

          4.       Complainant was examined as PW1 and Exhibits P1 to P6 were marked on her side.  DW1 was examined and Exhibits D1 to D4 were marked on the side of the opposite party.

          5.       Considering the evidence adduced by the parties and hearing both sides the District Forum has passed the impugned order.  Aggrieved by the order passed by the District Forum the opposite party has filed the present appeal.

          6.       Heard both sides.  Perused the records.

          7.       Parties are referred to according to their status/rank mentioned in the complaint.

          8.       There is no dispute to the fact that on 23.10.2013 the complainant had sent a parcel containing medical books, clothes, food articles etc. to her daughter who was a student of MBBS course in Wuhan, China by Foreign Registered Post through the opposite party and paid Rs.4,594/-(Rupees Four Thousand Five Hundred and Ninety Four) towards postal charges.  Exhibit P2 is the copy of the receipt and Exhibit P3 is the copy of the declaration form, regarding the sending of the parcel.  According to the complainant the delivery of the parcel was not effected even after the stipulated and promised period of fifteen days and even at the time of filing of the complaint.  According to the opposite party on the basis of the complaint received from the complainant regarding the non-delivery of the articles they called for a report from the Kolkata RMS Division.  They received Exhibit D2 and D3 reports from the Kolkata Air Foreign stating that they had despatched the parcel and it arrived at Beijing and from there it was forwarded to Wuhan.  It is stated by the opposite party that the China Posts Administration did not communicate to them whether the parcel was delivered to the addressee or not.  It is contended by the opposite party that as far as they are concerned there is no deficiency in service or negligence on their part.  The District Forum found that there was deficiency in service on the part of the opposite party.

          9.       The authorised representative of the appellant submitted that the District Forum ought to have found that the opposite party has not done anything against the interests of the complainant but did all possible efforts to dispatch the parcel to China without any delay and the delivery of postal article in a foreign country is governed by their own Rules and Regulations and the opposite party is not competent to issue direction on that subject.  He also relies on Section 6 of the Indian Post Office Act, 1898, which provides exemption to Postal Department from liability arising out of non delivery or loss of postal articles/letters unless the same is caused on account of fault or willful act or default of the employee of the Postal Department.  It is the case of the appellant that since the article was sent to a foreign country no liability can be fastened on the opposite party under Section 6 of the Post Office Act, 1898.  According to them, once the articles cross the territorial jurisdiction of India, India Posts lacks jurisdiction to investigate on it and the Rules of the foreign country prevails.  In support of this argument, he produced the copy of the judgement of this Commission in Appeal A 86/2014 dated 17.08.2015 and the copy of the judgement in Appeal A 362/2015 dated 21.10.2016.  We have perused those judgements.  The facts of the cases mentioned in those judgements and the facts of the present case are different and further it deals with sending of article to foreign country by way of speed post.  Hence it is not applicable to the present case.

          10.     It is the specific case of the complainant that on the basis of the assurance from the opposite party that the articles would be delivered within fifteen days from the date of dispatch, the son of the complainant handed over the parcel to the opposite party.  At that time the opposite party did not express any sort of doubt that there were chances of delay or loss of articles and in case if it is lost in China it being a foreign country they would not be liable for any such loss.  Had there been doubt of any kind in the matter of smooth delivery of article in a foreign country and possible loss during transit, that should have been definitely informed to the complainant by the employee of the opposite party at the time of accepting the parcel/article by the opposite party.  At the time of accepting the parcel/article and receiving the charges for sending the parcel/article, the opposite party ought to have informed the complainant that if any delay or loss is caused regarding the parcel/article they would not be responsible since the parcel was to be delivered in a foreign country.  In Exhibit P2 receipt and P3 declaration form nothing is stated regarding that aspect.  It is to be noted that the opposite party had no case that they had given such information to the complainant when they accepted the parcel/article for sending it to Wuhan, China.  DW1 who was the Postmaster of Kollam could not explain anything in her cross examination and expressed her total ignorance about the transaction as she was not in charge of the Post Office at Kollam at the concerned time.  The complainant had entrusted the articles with the opposite party to be send to her daughter in China after payment of necessary postal charges under the bonafide belief that it would be delivered to her daughter.  After accepting the parcel/article, charging the required fee, without any hesitation knowing that it was to be send to Wuhan, China (a foreign country), the opposite party cannot contend that there was no deficiency in service on their part since they had sent it promptly to Wuhan, China and if the parcel was not delivered to the addressee in China (foreign country) they were not liable.  The contention of the opposite party is that the China Postal Administration did not communicate to them whether the parcel was delivered to the addressee or not.  It shows that the opposite party had not taken further steps to ensure that the postal articles reached the addressee.  As rightly found by the District Forum, there is deficiency in service on the part of the opposite party and they cannot claim protection under Section 6 of the Post Office Act.  We find that there is no reason/ground to interfere with the finding of the District Forum.

          11.     As per Exhibit P3 the value of the article sent is Rs.20,000/-(Rupees Twenty Thousand).  Exhibit P2 shows that the opposite party collected Rs.4,594/-(Rupees Four Thousand Five Hundred and Ninety Four) from the complainant.  Considering all these facts the District Forum directed the opposite party to pay Rs.25,000/-(Rupees Twenty Five Thousand) to the complainant towards the financial loss caused to her, which is just and reasonable.  The complainant claimed Rs.25,000/-(Rupees Twenty Five Thousand) as compensation and the District Forum directed the opposite party to pay Rs.15,000/-(Rupees Fifteen Thousand) as compensation to the complainant.  PW1 deposed that she had sent the medical books to her daughter for her ensuing examination, which were not available in China and since she did not get the books it has affected her studies and examination which caused mental agony to her and her family.  It is to be noted that the District Forum has not ordered any amount towards the costs of the proceedings.  Considering all these facts it can be seen that the compensation of Rs.15,000/-(Rupees Fifteen Thousand) ordered by the District Forum to be paid by the opposite party to the complainant is just and reasonable.  So no interference is called for regarding the amounts ordered to be paid by the opposite party to the complainant by the District Forum.  In view of the above discussion the appeal is liable to be dismissed.

          In the result the appeal is dismissed.  Parties are directed to suffer their respective costs.

          At the time of filing of the appeal the appellant has deposited Rs.20,000/-(Rupees Twenty Thousand).  The respondent/complainant is permitted to obtain release of the said amount, on filing proper application, to be adjusted/credited towards the amount due to her from the appellant/opposite party.

SL