DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE
PRESENT : Sri. P.C. PAULACHEN, M.Com, LLB : PRESIDENT
Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER
Friday the 24th day of September 2021
C.C. 469/2013
Complainant
Sri. Ajaykumar.P
S/o. Late P.V. Ayyappan
Thejus House, Thonichira Road
North Beypore (P.O),
Kozhikode – 673 015.
(By Adv. Sri. Abdul Hakkim)
Opposite Parties
- Post Master
Beypore Post Office,
Kozhikode – 673 015.
- Post Master
Foreign Post Office
YMCA Building
Kochi – 682 035.
- Assistant Commissioner of Customs
Postal Appraising Department,
YMCA Building,
Kozhikode – 682 035
(OP3 By Adv.Sri. P. Manjith)
ORDER
By Sri. P.C. PAULACHEN – PRESIDENT.
This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.
2. The case of the Complainant, in brief, is as follows:
The complainant purchased one phonograph from the USA on 18/04/2012 through ‘e-bay’ , which is an online marketing place on payment of USD 407.69 as its actual price and an amount of USD 275 as postage and packing charge. The said article was insured for an amount of USD 550 against all damage and loss during transit . The Insurance coverage was only for a period of 45 days. The said instrument is a mechanical device called ”VINTAGE EDISON STANDARD PHONOGRAPH MODEL C WITH HORN AND CRANK”. The above phonograph was sent to the complainant from the USA through the United States Postal Service and the same reached the office of the 2nd opposite party before 07/05/2012 and thereafter the complainant received a notice from the 3rd opposite party asking him to produce all the relevant documents for the purpose of inspection. On 14/05/2012 the complainant produced all the relevant documents before the 3rd opposite party. But the 3rd opposite party did not release the postal article and detained it unnecessarily for almost one year and 3 months stating that it had to be inspected by the Archaeology Department . But the 3rd opposite party did not take any steps in this regard inspite of repeated requests made by the complainant. The 3rd opposite party released the parcel to the 2nd opposite party for delivery and the complainant took delivery from the 1st opposite party on 05/08/2013 on payment of duty amount of Rs.9,070/- and postal charge of Rs.100/-. On opening the parcel the complainant was shocked to see the scrap of the phonograph which was totally broken into bits and pieces. The damage was such that it was not repairable. The seller had sent the phonograph in good condition by packing in double box with packing materials like bubble wraps and packing peanuts. The phonograph was in tact when it arrived at the office of the 2nd opposite party. It was also in good condition at the time when the 3rd opposite party opened the box for inspection. After opening, it was kept in the custody of the 2nd opposite party without repacking properly. It is understood that it was damaged due to the mishandling by the 2nd opposite party . The damage occurred only due to the mishandling and carelessness on the part of the 2nd and 3rd opposite parties. If the damage was reported within 45 days from the date of despatch, the complainant would have got compensation from the insurance company. But that was not possible due to the inordinate delay in delivering the article. The parcel was not repacked well as it was done by the seller and so the damage occurred during transit from the 2nd opposite party to the 1st opposite party. The 1st opposite party also did not handle the postal article with due care. Due to the above negligence and deficiency from the side of the opposite parties, the complainant had suffered huge financial loss. He had paid an amount of Rs.36,230.43 as the price and packing charge and paid an amount of Rs.9,170/- as duty and postal charge. He had to go to the office of the 2nd and 3rd opposite parties from Kozhikode to Kochi on several occasions and around Rs.10,000/- was spent as travelling and other expenditure. Thus he suffered loss of a total amount of Rs.55,400.43. Besides he had suffered much mental agony and he is entitled to get at least Rs.40,000/- as compensation. Thus the complainant seeks to realise Rs.95,400/- as compensation from the opposite parties.
3. The opposite parties filed their version. The contentions of the 1st and 2nd opposite parties, in brief, are as follows:
They are unaware of the purchase of phonograph by the complainant. The complainant is not having any consumer relationship with the Postal Department in India as he has not availed any service for consideration from the department. The complaint is beyond the purview of the Consumer Protection Act, 1986. The opposite parties are not accountable for the deficiency of service that has a genesis in a foreign land. A complaint dated 05/08/2013 was received from the complainant alleging that the postal article was completely damaged. The article was detained by the Customs authorities at Kochi for clearance from the Archaeological Department, for which, it took almost one year. While taking delivery of the parcel by the complainant, there was no physical damage to the box. The article was delivered safely to the complainant on 05/08/2013 with clear receipt as window delivery. Section 6 of the Indian Post Office Act, 1898 provides complete immunity to the Government and the Postal authorities from any such liability. In the instant case, the article was received at the Kochi Foreign Post on 25/04/2012. The article was received by the Customs authorities on the same day and was transferred to LMA branch for examination. The article was opened by the Customs authorities on 26/04/2012 and was detained as per direction from the office of the 3rd opposite party. The detained article was packed and kept in deposit in good condition. The article was presented again before the Customs examination on 26/07/2013 as per the request of the customs authorities and the same was released to the addressee with duty of Rs.9,070/- and postal fee of Rs.100/-. No damage was noticed to the contents of the said parcel before the release. The article was repacked in good condition and sent to the addressee. They are not responsible for the delay or damage, if any. Completion of Customs declaration is the responsibility of the sender. The complaint is bad for non - joinder of necessary parties. The complainant is not entitled to get any compensation from them and the complaint is only to be dismissed.
4. The contentions, in brief, of the 3rd opposite party are as follows:
The complaint is not maintainable as the complainant is not a consumer as defined under the Consumer Protection Act, 1986. It is true that the phonograph was presented by the Postal authorities for examination on 26/04/2012 . It was a postal parcel in transit and the postal authorities were the custodian. The parcel was examined and description of the contents were noted in the Way Bill and detained for further assessment by the table appraiser and that was done as part of official duty. On 07/05/2012, memos were issued to the complainant for production of invoice and related documents for the purpose of assessment of customs duty and clearance of the parcel. A reply dated 14/05/2012 was received from the complainant along with invoice details. The procedure followed in the case of postal articles in transit is that the postal authorities who are the custodian of the same shall prepare the Way Bill and allot the parcel for examination and they should open it in the presence of the customs officials and after examination, safely pack them and keep in their custody. The parcels, the value of which, cannot be ascertained or those which are in violation of the Foreign Trade Policy or those which need further clarification for the purpose of assessment are detained and kept pending for further adjudication. Production of invoice and other related particulars from the importer will be insisted for ascertaining the value. If necessary, the assistance of other related departments is also sought for. In this case, after submission of the invoice by the complainant, the appraiser felt that an inspection by the Archaeology Department was necessary to assess the value of the item. Though the said department was contacted by the appraiser, there was no reply. As per letter dated 08/07/2013, the complainant made a request to the Assistant Commissioner of Postal Appraising Department of Customs to release the parcel stating that he had submitted all the necessary particulars. The request was considered and the parcel was assessed and the amount payable by the assessee was fixed at Rs.9,070/- . A depreciation to the extent of Rs.10,000/- was granted to the assessee during the detention period from 08/05/2012 to 23/02/2013. At the time of inspection and repacking the parcel was in good condition. The parcel was handled carefully during examination and was ensured by the table officer that the Postal officers repacked it into the normal condition ensuring full safety to the contents inside. The article was in good condition at the time of examination and repacking. With the above contentions, the 3rd opposite party also prays for the dismissal of the complaint.
5. The points that arise for determination in this case are:
(1) Whether the complainant is a consumer or not ?
(2) Whether there was any deficiency of service from the
part of the opposite parties, as alleged.
(3) Whether the claim for compensation is allowable ?
(4) Reliefs and costs
6. Evidence consists of the oral evidence of PW1 and Exhibits A1 to A10 on the side of the complainant. RW1 was examined and Exts. B1 to B5 were marked on the side of the 1st and 2nd opposite parties. No evidence was set in by the 3rd opposite party. Ext. C1 was also marked.
7. Heard both sides. The complainant filed brief argument note.
8. Point No.1 :
It is contended that the complainant herein is not a consumer as defined under section 2 (1) (d) of the Consumer Protection Act, 1986. The contention is that the complainant is not having any consumer relation with the opposite parties as he has not availed any service for any consideration. In this context, it may be noted that the article was sent to the complainant from the USA through the United States Postal Service and the same reached the office of the 2nd opposite party. The transmission of international letter post articles between two different postal administration is regulated under the provisions of Universal Postal Union (UPU) , Letter Post Manual (Ext. B1). As per Article 18 of the said manual the designated operators of the countries of the origin and destination shall be authorised to submit items to the customs control according to the legislation of those countries. It provides that the items submitted to the customs control may be subjected to a presentation – to – customs in charge. Further it provides that the designated operators which are authorised to clear the items through the customs on behalf of the customers may charge customers a custom clearance fee based on actual cost. It is provided that the designated operators are authorised to collect from the senders or addressees of the items, as the case may be, the customs duty and all other fees which may be due. The 3rd opposite party released the parcel to the 2nd opposite party for delivery to the complainant and the complainant has taken delivery from the 1st opposite party on 05/08/2013 on payment of duty amount of Rs.9,070/- and postal fee of Rs.100/-. The payment of customs duty and postal fee is evidenced by Ext.A6. It is stated in Ext.A6 that the postal fee represents the cost of service performed by the Post office in handling the articles at the office of exchange. According to the definition of consumer in section 2(1) (d) of the Consumer Protection Act, 1986 a person who hires or avails of any services for consideration is a consumer. Since the complainant has availed of the service from the opposite parties for consideration as stated above, he is definitely a consumer falling under section 2(1) (d) of the Consumer Protection Act, 1986. The complainant alleges that the opposite parties failed to handle the postal article with due care and caution and thereby damage occurred during the transit of the article from the office of the 2nd opposite party to the 1st opposite party. If the allegation is proved to be true, it is a deficiency of service. So the grievance of the complainant will come under section 2(1) (c ) and (g) of the Consumer Protection Act, 1986. Point is answered in favour of the complainant.
9. Points 2 and 3 :
These points can be considered together for the sake of convenience. The complainant got himself examined as PW1. He filed proof affidavit and deposed in terms of the averments in the complaint and asserting that due to the negligence and deficiency of service from the side of the opposite parties, he has suffered huge monetary loss apart from mental agony. According to PW1, there was delay of nearly one year and three months in delivering the postal article to him and the parcel was not repacked properly and the damage occurred due to mishandling and carelessness on the part of the opposite parties. Ext. A1 is the computer generated copy of the invoice transaction ID dated 18/04/2012, Ext.A2 is the computer generated copy of invoice, Ext. A3 is the customs declaration dispatch note – CP 72, Ext. A4 is the letter dated 07/05/2012 issued by the 3rd opposite party, Ext. A5 is copy of the letter dated 14/05/2012 sent by the complainant to the 3rd opposite party, Ext. A6 is the postage and customs duty receipt, Ext.A7 is the copy of the letter dated 08/07/2013 sent by the complainant to the 3rd opposite party, Ext.A8 is the copy of the letter dated 05/08/2013 sent by the complainant to the Senior Superintendent of Post Offices, Calicut Division, Ext. A9 is the reply dated 03/09/2013 and Ext.A10 is the photographs of the phonograph.
10. RW1 is the Inspector posts (Public Grievance) Calicut Division. RW1 filed proof affidavit on behalf of opposite parties 1 and 2 and deposed supporting the contentions in their version . According to RW1, while taking delivery of the parcel by the complainant, there was no physical damage to the box. The article was delivered safely to the complainant from the Beypore post office under receipt as window delivery . RW1 has asserted that the article was repacked in good condition and sent to the addressee. Ext. B1 is the copy of the relevant portion of Universal Postal Union Letter Post Manual, Ext. B2 is the copy of delivery slip, Ext. B3 is the copy of the relevant rule of the Foreign Post Manual, Ext. B4 is the relevant page of the Indian Post Office Act,1898 and Ext. B5 is the copy of the judgement dated 09/09/2010 in appeal No.413/2004 of the Kerala State Consumer Disputes Redressal Commission.
11. There is no dispute that the phonograh sent to the complainant from the USA through the United States Postal Service reached the office of the 2nd opposite party before 07/05/2012. After completing the formalities, the complainant took delivery of the same on 05/08/2013 from the 1st opposite party . The grievance of the complainant is that on opening the box, the phonograph was in a damaged condition and it was seen broken into pieces beyond repair. Ext.A 10 photographs also reveals the same. Ext. C1 Commission report also proves the fact that the phonograph is completely damaged beyond repairs. The learned Advocate Commissioner who prepared Ext.C1 inspected the article after giving notice to both sides. RW1 was present at the time of inspection representing the 1st and 2nd opposite parties. The complainant was also present. It is true that the learned Commissioner inspected the article only on 18/08/2015. But the delay by itself is not a sufficient ground to discard Ext. C1. PW1 has categorically deposed that he received the phonograph from the 1st opposite party in a damaged condition. There is absolutely no reason to disbelieve PW1. The opposite parties have no explanation how the article was damaged. It is hard to believe that PW1 himself caused damage to his phonograph after delivery by the postal authorities, which he purchased from abroad after taking much effort following all the procedures, in order to falsely implicate the opposite parties in a case like this. The evidence of PW1 coupled with Ext.A1 and C1 would prove that PW1 received the postal article in a damaged condition. The very fact that the article reached the complainant in a damaged condition establishes the deficiency of service on the part of the 1st and 2nd opposite parties. It is an admitted fact that the postal authorities were the custodian of the parcel . It is in evidence that when the parcel was opened in the presence of customs officials, the phonograph was in a good condition. Then it is for the postal authorities to explain how the phonograph was damaged before reaching the addressee. It is the duty of the postal authorities to repack ensuring full safety to the article inside and transit the same safely. From the above discussion, we have no hesitation to hold that damage was caused to the phonograph as a result of the negligence and lack of due care on the part of the postal authorities in packing and handling the same.
12. It is seen that there was delay on the part of 3rd opposite party in completing the procedures and formalities. But it is to be noted that the 3rd opposite party had no role in the custody, packing, transit or delivery of the postal article. The reason for the delay from the part of the customs authorities is explained in the version. It is stated that after submission of invoice by the complainant, the appraiser felt that an inspection by the officials of the Archaeology Department was necessary to assess the value of the phonograph. The Customs authorities have the right to seek the help of the related departments, if necessary, for assessing the value. Thus the delay is well explained by the 3rd opposite party. Moreover, it cannot be said that the delay in completing the procedure by the Customs authorities was the reason for the breaking of the phonograph in the course of packing and transit by the Postal authorities.
13. Now the cardinal point to be considered is as to whether the complainant is entitled to claim compensation from the postal authorities for the damage caused to the postal article. In this context, it is worthwhile to have a glance at section 6 of the Indian Post Office Act, 1898. Section 6 of the said Act reads as follows :
“ 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 hereinafter provided; and no officer 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 wilful act or default”.
So it is clear that by virtue of section 6 of the Indian Post Office Act, the Postal authorities are exempted from the liability.
14. The Honourable Kerala State Consumer Disputes Redressal Commission in Judgement dated 09/09/2020 in Appeal No.413/2004 preferred against the order of the Consumer Disputes Redressal Forum, Kannur in OP 55/2002 has held that the Government and the Postal authorities are entitled to absolute immunity as provided under Section 6 of the Indian Post Office Act.
15. The Honourable National Consumer Disputes Redressal Commission, New Delhi vide order dated 10/04/2015 in Revision Petition No.2324/2014 preferred against the order dated 30/12/2013 in Appeal No.10/2013 of the Hon’ble Kerala State Consumer Disputes Redressal Commission has upheld the validity of section 6 of the Indian Post Office Act in favour of the Postal department. The Hon’ble National Commission has held as follows:
“ The scope and reach of Section 6 of the said Act has been considered by us in the order pronounced today in RP No.4967/2008. Analysing the said provision, we have held as follows:
“ The Section is divided into two parts. The first part provides for a complete immunity to the Government, except in express terms, as undertaken by the Government under the statute. Under the second part, an individual postal employee can be held liable only when loss, misdelivery, delay or damage has been caused fraudulently or by the wilful act or default on the part of such employee. Thus, a plain reading of the Section leaves little scope for doubt that unless it is proved that the loss, misdelivery or delay has been caused 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, misdelivery or delay in damage to the postal article, as the case may be, in the course of transmission of the article by post. Undoubtedly, onus to prove the allegation of fraudulent or wilful act or default would lie on the person who alleges it to be so. Therefore, the provision, although an antiquated piece of legislation, dating back to the year 1898, but as it stands today in the 21st Century, still grants immunity to the Postal department from incurring any liability for delay in delivery of the article in the course of its transmission by post, unless a wilful default on the part of its employee is proved, which of course, is a heavy onus to discharge (Emphasis Supplied)”.
16. In another judgement dated 08/12/2014 in Revision Petition No.3591/2009 filed against the order dated 11/12/2008 in Appeal No. 576/2006 of the Hon’ble State Commission, Delhi, the Hon’ble National Consumer Disputes Redressal Commission has upheld Section 6 of the Indian Post Office Act and held that “ the liability of Government of India for loss or misdelivery of the insured article and loss in the course of transmission by post is not contractual but purely statutory in nature”. It was further observed as follows:
“ This commission in its 4 Bench members in the case of The Presidency Post Master and another versus Dr.U Shanker Rao (N.C) Revision Petition Nos.175 and 247 of 1992, decided on 15/04/1993, were pleased to hold that “services rendered by the Post Office are merely statutory and there is no contractual liability. Establishing the Post Offices and running the postal service the Central Government performs a Governmental function and the Government does not engage in commercial transaction with the sender of the article through post and the charges for the article transmitted by post is in the nature of charges posed by the state for the enjoyment of the facilities provided by the Postal Department and not in consideration of any commercial contracts. The Post Office cannot be equated with a common carrier.”
Thus it is now a settled position that the Government and the Postal Authorities are entitled to absolute immunity as provided under Section 6 of the Indian Post Office Act.
17. Coming to the present case, there is no case for the complainant that the postal article was damaged in transit on account of the fraudulent and wilful act or default of the 1st and 2nd opposite parties or their subordinate employees. Equally, the complainant has no case that the Government of India had undertaken any liability in the event of any damage of the postal article. The Postal authorities are entitled to get immunity by virtue of section 6 of the Post Office Act and no liability can be fastened on them for the damage of the postal article. Therefore, it follows that the complainant is not entitled to claim any compensation from the opposite parties. Points found accordingly.
18. Point No.4 :
In view of the findings on points 3 and 4 above, the complainant is not entitled to the reliefs sought for and consequently the complaint is liable to be dismissed.
In the result, CC No.469/2013 is dismissed. However, no order as to costs.
Dictated to the Confidential Assistant, transcribed by her and corrected by me and pronounced in the open commission on this the 24th day of September 2021.
Date of Filing: 11/10/2013.
Sd/-
PRESIDENT
Sd/-
MEMBER
APPENDIX
Exhibits for the Complainant :
1. Ext. A1 – Estimate No. 802 dated 18/12/2014.
2. Ext. A2 – Copy of the lawyer notice dated 10/07/2015.
3. Ext. A3 – Postal receipt.
4. Ext. A4 series – Postal acknowledgement cards.
5. Ext. A5 – Unclaimed postal article.
6. Ext. A6 series – Photographs .
7. Ext. A7 – Copy of complaint filed by the complainant
before the Sub Inspector of Police, Kolavallur.
8. Ext. A8 series –Mobile phone bills.
Exhibits for the Opposite Parties
1. Ext. B1 – Copy of the relevant portion of Universal Postal Union Letter Post Manual.
2. Ext. B2 – Copy of delivery slip.
3. Ext. B3 – Copy of the relevant rule of the Foreign Post Manual
4. Ext. B4 s – The relevant page of the Indian Post Office Act,1898
5. Ext. B5 - Copy of the judgement dated 09/09/2010 in
appeal No.413/2004 of the Kerala State Consumer
Disputes Redressal Commission.
Commission Exhibits
Ext – C1 – Commission Report
Witnesses for the Complainant
PW1 –Ajayakumar.P. (Complainant)
Witnesses for the opposite parties
RW1 - Inspector of posts
Sd/-
PRESIDENT
Sd/-
MEMBER
Forwarded/By Order
Senior Superintendent
