BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

                                           C.C.No.23/2015

Dated this the 19^th day of May 2016

(Date of Institution: 02.04.2015)

Auroville Energy Products rep. by its Managing

Executive Carsten Michelsen                      

Auroshilpam, Auroville, Vanur Taluk,

Villupuram District, Tamil Nadu – 605 101.

                                                ….     Complainant

Vs.

1. The Post Master,   

    Auroville Post Office, Auroville – 605 101.

2. The Superintendent of Post Offices

    Pondicherry Head Post Office             

    Pondicherry – 600 001.

3. The Post Master General

    Videsh Dak Bhavan, Mumbai – 400 001.

                                                ….     Opposite Parties

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Tmt. PVR. DHANALAKSHMI, B.A.,B.L.,

           MEMBER

Thiru V.V. STEEPHEN, B.A., LL.B., 

           MEMBER

FOR THE COMPLAINANT            :  Thiru. H. Sathyaseelan, Advocate

FOR THE OPPOSITE PARTIES     :  Thiru R. Balasubramanian,  

                Advocate/ACGSC   

O R  D  E  R

(By Thiru.A. ASOKAN, President)

This is a complaint filed by the complainant under section 12 of the Consumer Protection Act, 1986 praying to direct the opposite parties to trace the missing parcels or refund a sum of Rs.67,266.00 with interest at the rate of 18% p.a. thereon from 18.12.2013 the date of post of the parcels till complete discharge thereof;  direct the opposite parties to pay the complainant compensation of Rs.2,00,000/- for the physical hardship and suffering, mental agony and monetary loss caused to him due to opposite party's deficiency in service and to direct the opposite parties to pay the complainant a sum of Rs.5,000/- towards Litigation expenditure and cost of the complaint.

2.  The case of the complainant is as follows:

          The complainant booked energy saving products in two parcels by Air Mail to one Norbert Huebner, New Tribes Mission – Papua New Guinea, PO Box 1079, Goroka, EPH 441, Papua New Guinea on 18.12.2013 and paid postal charges of Rs. 5,196/- and Rs.5,278/- respectively.  The First Opposite Party promised the complainant that the Air Parcels will reach within 15 days from the date of posting.  But the said parcels did not reach the complainant's client within 15 days.  On enquiry with the first opposite party, they had stated to enquire with the second opposite party who in turn advised the complainant to book an online complaint with the second opposite party website through internet.  Accordingly, the complainant lodged an online complaint on 18.02.2014 with the second opposite party.  On 28.02.2014 the complainant made a written complaint through registered post to the second opposite party requesting to know the whereabouts of the parcels.  On 24.03.2014 the second opposite party replied that necessary steps are being taken and requested the complainant to intimate the weight, postage, contents particulars and value of the parcel along with the contact telephone numbers of the addressee, which was also furnished by the complainant vide letter dated 31.03.2014.   On 16.08.2014 the complainant wrote a reminder to the second opposite party.  Due to the negligence and carelessness, the complainant lost a valuable customer and have got the name damaged with heavy loss.  The complainant sent legal notice to the opposite parties for which they did not give any reply.  Hence this complaint.   

3.       The following are the averments narrated in the reply version filed by the Opposite Party No.2 and adopted by Opposite Parties 1 and 3:

          The opposite parties admitted the booking of parcels, promise made to the complainant about the period of delivery and also the web complaint made by him and also the written complaint dated 28.02.2014 given by the complainant.   It is stated by the opposite parties that the despatch details of the said  parcels were updated by Mumbai Foreign on 24.03.2014 in the web complaints stating that the parcels were dispatched to Boroko in Air Despatch No. 70 dated 23.12.2013 with weight 13.95 and 14.200 kgs. Entered in CP 87 bill at Serials 1/2 and 2/3 respectively.  It is also stated by the opposite parties that the parcels booked on 18.12.2013 were dispatched Boroko vide Air despatch No.70 dated 23.12.2013 and hence, there is no delay in despatch of the parcels.  The online complaint dated 18.02.2014 was perused and the matter was taken up with the destination country through "Cricket Software".  Further all the information required by Penang Postal Administration was forwarded through "online Cricket Software".  Further the matter was taken up with Air Carriers on 28.7.2014, 2508.2014 and 25.09.2014 through which the parcel bags were forwarded to the destination country.  It was further intimated that the Air Authorities were warned on 25.09.2014 that if reply is not received within 10.10.2014 sender will be compensated with the admissible amount as per Post Office Rule.   Further, the Assistant Director Postal Services (A & V), Mumbai in his letter dated 09.10.2014 intimated that both the parcels were dispatched to the destination vide Mumbai Foreign Borokko Air Despatch No. 70 dated 23.12.2013 and the bags containing both the parcels were handed over to the Air Carrier concerned under clear acquaintance.  The opposite parties further submitted that the Assistant Director Postal Service (A & V), videsh Dak Bhavan, Mumbai 400 001 in his letter No. CPT 6-J/40&41# 10/14 dated 16.10.2014 addressed to the Director, Foreign Post, Chennai 600 001 that as no conclusive reply has been received from the Singapore Airlines through which the said parcels were dispatched inspite of repeated reminders, it was decided by the competent authorities to settle the claim at the risk of the Singapore Airlines as per UPU parcel Post Manual Articles No. RC156 requesting the Director, Foreign Postal to issue sanction memos with admissible amount as per Article 21(4.1) & RC 149 (2.1) of UPU parcel post Manual.  As the sanction was not received, the Director, Foreign Post, Chennai was addressed by second opposite party  vide letter dated 09.04.2015 to cause for early issue of sanction. The sender of the parcels has also been addressed on 13.04.2015  enclosing blank claim applications and to submit the filled in claim applications along with the original booking receipt,  copy of invoice/ bill for the contents & addressee's denial statement/ letter if available for consideration of the claim. The Director, Foreign Post, Chennai has issued claim sanction memos vide memo No FP/web-1779/13 dated 29.04.2015 and No. FP/Web-1780/13 dated 29.04.2015 the sender is entitled to compensation of Rs.13631/- in respect of parcel No. CP 4196390821IN dated 18.12.2013 and Rs.. 13459/- in respect of parcel No. CP 4196390791IN dated 18.12.2013.   The amount of maximum permissible compensation is fixed according to the weight of the parcel as per the following formula. (40 SDR+4.5SDR  x per kg + postage amount-One SDR is equivalent to Rs.80.2253).   The opposite parties also stated that the online complaints registered by the complainant was followed properly and promptly, but due to non receipt of reply from the Air Carriers, the claim of the complainant could not be settled in time.  But due to the reasons that no report on loss of the article was received from air Carriers and also as it is beyond the administrative jurisdiction to ascertain the loss of parcels, the claim was kept pending.   It is submitted that there is no intentional/willful delay in settling the claim, as alleged by the complainant.   

          4. Further, as per Section 6 of Indian Post Office Act, 1898, the Government shall not incur any liability by reason or 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 willful act or default" Further, under Consumer Protection Act 1986, one cannot go beyond the Statutory Provisions and grant compensation more than what is statutorily fixed. A consumer forum is even bound by the terms of the contract howsoever oppressive these may be unless those terms are against the public policy, illegal or void. 

The above said section was also elaborately discussed by the Hon'ble National Commission in Revision Petition No. 2411 of 2006.  Since, there is no willful / intentional action on the part of the Opposite Parties, the complaint lacks merit and hence, prayed for dismissal of the complaint.

5.       Points for determination are:

          1. Whether the complainant is the Consumer?

          2. Whether any deficiency in service attributed by the Opposite Parties?

          3. To what relief, the complainant is entitled for?

6.       Point No.1:

          The complainant sent two Parcels of energy savings products by Air Mail to Papua New Guinea and paid postal charges of Rs.5,196/- vide receipt No.ACP419639079IN and Rs.5,278/- vide receipt No. ACP419639082IN on 18.12.2013 as per Ex.C1 through the first opposite party.  Thus, the complainant is the beneficiary of the service rendered by the Opposite Parties.  Hence, the complainant is the consumer of the Opposite Parties.

7.       Point No.2:

          We have perused the entire records, the complaint, reply version, exhibits marked on both sides.  Even though several opportunities were given to the opposite parties, they have not even chosen to cross-examine the complainant.  Further, ample opportunities were given to both parties, they have failed to appear and put forth their arguments.  Hence, the arguments of both sides were closed. 

8. The complainant submitted that he had booked energy saving products in two parcels by Air Mail to one Norbert Huebner, New Tribes Mission – Papua New Guinea, PO Box 1079, Goroka, EPH 441, Papua New Guinea on 18.12.2013 and paid postal charges of Rs. 5,196/- and Rs.5,278/- respectively vide Ex.C1.  At the time of booking, the First Opposite Party stated the complainant that the Air Parcels will reach within 15 days from the date of posting.  But the said parcels did not reach the complainant's client within 15 days.  On enquiry with the first opposite party, they had stated to enquire with the second opposite party who in turn advised the complainant to book an online complaint with the second opposite party website through internet.  The complainant lodged an online complaint on 18.02.2014 with the second opposite party.  It is also submitted  by the complainant that on 28.02.2014 he had made a written complaint through registered post to the second opposite party requesting to know the whereabouts of the parcels.  On 24.03.2014 the second opposite party replied that necessary steps are being taken and requested the complainant to intimate the weight, postage, contents particulars and value of the parcel along with the contact telephone numbers of the addressee, which was also furnished by the complainant vide letter dated 31.03.2014.   On 16.08.2014 the complainant wrote a reminder to the second opposite party.  Due to the negligence and carelessness, the complainant lost a valuable customer and have got the name damaged with heavy loss.  The complainant sent legal notice dated 20.09.2014 Ex.C2 to the opposite parties for negligent and careless Act.  Even though the same was acknowledged by the opposite parties vide Exs.C4 to C7, they have not given any reply.

          9. On the otherhand, it is alleged by the opposite parties that the parcels booked by the complainant on 18.12.2013 were dispatched Boroko vide Air despatch No.70 dated 23.12.2013 and hence, there is no delay in despatch of the parcels.  Further, on receipt of online complaint from the complainant, they have taken up the matter with Air Carriers on 28.7.2014, 25.08.2014 and 25.09.2014 through which the parcel bags were forwarded to the destination country.  Further, the Air Authorities were warned on 25.09.2014 that if reply is not received within 10.10.2014, the sender will be compensated with the admissible amount as per Post Office Rule.   It is also alleged by the opposite parties that the Assistant Director Postal Services (A & V), Mumbai in his letter dated 09.10.2014 intimated that both the parcels were dispatched to the destination vide Mumbai Foreign Borokko Air Despatch No. 70 dated 23.12.2013 and the bags containing both the parcels were handed over to the Air Carrier concerned under clear acquittance.  The opposite parties further alleged that the Assistant Director Postal Service (A & V), Videsh Dak Bhavan, Mumbai 400 001 in his letter No. CPT 6-J/40&41# 10/14 dated 16.10.2014 addressed to the Director, Foreign Post, Chennai 600 001 that as no conclusive reply has been received from the Singapore Airlines through which the said parcels were dispatched inspite of repeated reminders, it was decided by the competent authorities to settle the claim at the risk of the Singapore Airlines as per UPU parcel Post Manual Articles No. RC156 requesting the Director, Foreign Postal to issue sanction memos with admissible amount as per Article 21(4.1) & RC 149 (2.1) of UPU parcel post Manual.  As the sanction was not received, the Director, Foreign Post, Chennai was addressed by second opposite party  vide letter dated 09.04.2015 to cause for early issue of sanction. The sender of the parcels has also been addressed on 13.04.2015  enclosing blank claim applications and to submit the filled in claim applications along with the original booking receipt,  copy of invoice/ bill for the contents & addressee's denial statement/ letter if available for consideration of the claim. The Director, Foreign Post, Chennai has issued claim sanction memos vide memo No FP/web-1779/13 dated 29.04.2015 and No. FP/Web-1780/13 dated 29.04.2015 the sender is entitled to compensation of Rs.13631/- in respect of parcel No. CP 4196390821IN dated 18.12.2013 and Rs.. 13459/- in respect of parcel No. CP 4196390791IN dated 18.12.2013.   The amount of maximum permissible compensation is fixed according to the weight of the parcel as per the following formula. (40 SDR+4.5SDR  x per kg + postage amount-One SDR is equivalent to Rs.80.2253).   The opposite parties also submitted  that the online complaints registered by the complainant was followed properly and promptly, but due to non receipt of reply from the Air Carriers, the claim of the complainant could not be settled in time.  But due to the reasons that no report on loss of the article was received from Air Carriers and also as it is beyond the administrative jurisdiction to ascertain the loss of parcels, the claim was kept pending.   It is submitted that there is no intentional/willful delay in settling the claim, as alleged by the complainant.

          10.  From the above facts and material, we ascertained that the complainant has sent two parcels on 18.12.2013 through first Opposite party's post office who in turn dispatched to Mumbai and they have sent the same to the destination vide Mumbai Foreign Borokko Air Dispatch No. 70 dated 23.12.2013 and the bags containing both the parcels were handed over the Air Carrier concerned under clear aquitance and also the matter was taken up with the concerned Air Carriers after stipulated time.  Since no reply was received from the said Airlines i.e. Singapore Airlines regarding the disposal of bags, the Foreign Post Office, Mumbai asked the Director, Foreign Post, Chennai to issue claim papers, sanction memo and to settle the claim as per Rule.  Accordingly, the second opposite party issued blank claim form to the complainant for settling the issue.   Hence, the plea taken by the complainant that the opposite parties were negligent and careless in their duty is not sustainable and it is clear that the Opposite Parties have taken all the efforts to deliver the parcel to the addressee at Papua New Guinea.  However, the alleged parcels were not delivered by the Singapore Airlines and therefore, the  complainant has not established the Act of the Opposite Parties has been caused fraudulently or by willful act or default.

          11.  Further, the Opposite parties have relied upon a judgment reported in Revision Petition No.2411 of 2006 dated 13.10.2010 in which it states that the Indian Government is doing the postal duty as a Service to the people.  The Government gives much more in service than it gets in revenue.  Further relied the Section 6 of the Indian Post Office Act which gives protection to the Government against any claim for damages on account of loss or postal articles except cases to the extent to which it has been specially provided in the Act itself.  Further stated that the Hon'ble Supreme Court of India has also pointed out that the Post Office is not a common carrier, it is not an agent of the sender for sending of the postal articles to the addressee. 

          12.  This Forum also relied on the Authority of the Hon'ble National Consumer Disputes Redressal Commission in Revision Petition No. 986/1996 and Revision Petition No. 2411/2006.  This Forum relied on the recent Judgment rendered by Hon'ble National Consumer Disputes Redressal Commission in Revision Petition No. 535/2015 [INDIAN POSTAL DEPARTMENT, HEAD POST OFFICE VS AMITABH SRIVASTAVA – 2015 (2) CPR 308 (NC)], wherein the observation made as

          The Present case swirls around the question regarding the bar created by section 6 of the Indian Post Office Act, 1898.  The said section runs as under:

      "Sec. 6. Exemption from liability for loss, misdelivery, delay or damage.  The [Government] shall not incur any liability by reason or 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 willful act or default"

and also observed,

      "……Post office is not a common carrier, it is not an agent of sender of postal article for reaching it to addressee – It is a branch of public service, providing postal services subject to provisions of Indian Post Office Act and rules made thereunder – Services rendered by Post Office are merely statutory and there is no contractual liability".

“The services rendered for 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 contract. The Post Office cannot be equated with a common carrier.”

Hence, the Opposite Parties are not liable for any deficiency in service as prayed by the complainant.

          13.  Point No.3:

          In view of the decision taken in Point No.2, the complainant is not entitled for any relief as prayed.  Hence, this complaint is hereby dismissed.  No costs.

Dated this the 19^th day of May 2016.

1. ASOKAN)

PRESIDENT

(PVR. DHANALAKSHMI)

MEMBER

(V.V. STEEPHEN)

MEMBER

COMPLAINANTS' WITNESS:  

CW1           12.08.2015           Carsten Michelsen

OPPOSITE PARTY'S WITNESS:  NIL

COMPLAINANT'S EXHIBITS:

OPPOSITE PARTYS' EXHIBITS:   NIL

 ( A. ASOKAN )

PRESIDENT

(PVR. DHANALAKSHMI)

MEMBER

(V.V. STEEPHEN)

MEMBER