West Bengal

Dakshin Dinajpur

CC/105/2018

Gulnehar Khatun Sarkar, D/O- Abdul Hossain Mia, W/O- Rafizul Sarkar - Complainant(s)

Versus

The Post Master, Balurghat Head Post Office - Opp.Party(s)

04 Mar 2020

ORDER

The Complainant has filed the present case U/s 12 of the C.P. Act 1986.The brief facts of the case are that the Complainant applied for the post of “Para Medical Stuff” according to the advertisement made by the Department of Child Development & Women Development & Social Welfare, Government of West Bengal (vide Memo No. 159/SW/DD dated 11/06/2018) for the recruitment in the Subhayan Home for boys, Balurghat.

 According to the postal track report the Call Letter for written examination for the same post has been dispatched through registered Post from the respective department on 01/11/2018. The said letter Booked on 01/11/2018 at Balurghat H.O. (O.P.No- 1) and reached to the ICH Malda Hub on 02/11/2018 (O.P.No-3) and Tapan Post office (O.P.No- 2) on 19/11/2018. The complainant made the allegation that she received the said letter bearing ArticleNo.RW972784435IN from a tailoring shop of her neighbour on 20/11/2018 and came to know that the written examination was fixed on dated 17/11/2018. Thereafter, the Complainant made a complaint before O.P.No-1 on 30/11/2018 and O.P.No-2on 01/12/2018 respectively. But, all efforts were in vain.

The Complainant became astonished as she had every possibility to the get said job but she could not appear for the written examination only for the negligent act of the postal department. The Complainant suffered huge monetary loss with huge mental pain and agonies and for which she has filed the present case seeking redress and reliefs as incorporated in the prayer portion of the complaint.

 

The O.Ps has appeared through Ld. Advocate for contesting the case. The O.Ps by filing written version contending inter-alia that the present case is not maintainable before this Forum in its present form as well as in law. The O.P. make denial on the point of Consumer, jurisdiction etc. The main contention of the O.Ps is that the alleged registered post article in question was booked at O.P.No-1 Post office in the name of the complainant.  The same article was received at O.P.No-3 Post Office on 02/11/2018 from O.P.No-1. As per tracking report history the article was sent to O.P.No-2 branch Office for delivery on 19/11/2018. The article was attempted for delivery on 19/11/2018 but not delivered due to absent of addressee.  By putting all above the O.Ps further pleaded that the Complainant is not entitled to get the amount as prayed for according to the India Post Office act 1898 and this complaint liable to be dismissed with compensatory cost.

 

In the light of the contention of the Complainant, the following moot points necessarily came up for consideration.

 

POINTS FOR CONSIDERATION

 

1. Is the Complainant Consumer as per Section 2(1)(d) of the C.P. Act, 1986?
2. Has this Forum jurisdiction to entertain the instant complaint?
3. Have the O.Ps any deficiency in service as alleged by the Complainant and are they liable in any way?
4. Whether the Complainant is entitled to get relief/reliefs as prayed for?

 

DECISION  WITH  REASONS

 

We have gone through the record very carefully and perused the evidence on affidavit of the parties along with relevant documents. Perused also the written argument filed by the parties and heard the argument advanced by the Ld. Agents of the parties at a length.

 

Point No.1.

 

Admittedly, one article has been booked from O.P.No-1 in the name of the Complainant through Registered Post service of the opposite parties. The Complainant is the beneficiary of that service as such the Complainant is the Consumer as per C.P. Act 1986.

 

Point No. 2.

 

The Opposite Parties have their office in this District and the complaint value is far less than the prescribed limit. Thus, this Forum has every jurisdiction to try the present dispute.

 

Point No. 3 & 4.

 

Both the points are taken up together for convenience of discussion and sake of brevity.

It is the case of the Complainant that an emergency letter i.e. an written examination call letter has not been delivered by the O.Ps in due time for which she lost an opportunity to get a job as desired. Evidently, Annexure 4 reveals that the item was booked at O.P.No-1 Post office in the name of the complainant on 01/11/2018.  The same article was received at O.P.No-3 Post Office on 02/11/2018 from O.P.No-1. The article was sent to O.P.No-2 branch Office for delivery on 19/11/2018. The article was attempted for delivery on 19/11/2018 but not delivered due to absent of addressee.

Annexure-2 shows that the Complainant was called for the written examination. It also reveals that the date of written examination was on 17/11/2018 and the concerned authority sent the call letter to the Complainant in due time.

Annexure 5 & 6 reveals that the Complainant made a complaint before O.P.No-1&2 seeking redress of his dispute.

 

It is pertinent to mention that the Complainant succeeded for an written examination so she have the every possibility to get the job but her desire has been totally frustrated due to negligent act and deficiency in service of the O.Ps.

 

In their written version and evidence on affidavit (Para -6) the opposite party stated that that the article in question was sent to Tapan Post office on due time and the same was attempted for delivery on several times but not delivered due to absence of the addressee. But, the OPs are silent about the facts and circumstances after non delivery of the consignment due to absenteeism of the complainant.

 

The fact is that the consignment was delivered and the complainant received the same from her neighbor. The OPs are also kept unspoken about the facts (a) delivery of the postal article of the complainant to the neighbor of the complainant. (b) Silent about the Postal Tracking report of the alleged ArticleNo. RW972784435IN  (c) Silent about whom they delivered the consignment and in which date?

 

It is pertinent to mention that Citizen's Charter India Post had declared the time for registered post within same circle within 7 days. The resident of the Complainant where the registered post was to be delivered in just about 30-40 km from Balurghat but the O.P. No.2&3 failed to deliver the article to the Complainant within 19 days.

 

 If we considered that the postal tracking report is fake, the plea as taken by the O.Ps as to the delay-delivery of the alleged article is not sustainable in the eye of law as the O.Ps failed to adduce any single documents to show that the postal peon had make any attempt to deliver the article to the addressee on due time or it has been returned back to the sender. The absence of any acceptable explanation as to why the article has not been delivered in due time, the postal department has no consistent case. Besides, the O.Ps verbally admitted that the registered article subsequently delivered to the cousin of the complainant, which is nothing but a gross deficiency in service for which the Complainant deprived from appearing an examination and lost a chance of bright carrier.

The O.Ps admitted that if there any deficiency in service, the sender of the article shall be compensated as per the departmental rule but in no way the Complainant is entitled to get any compensation. In the case in hand the sender did not suffer any loss, the addressee i.e. the present Complainant has been suffered a lot by not getting the said article. Thus, this contention of the O.Ps has no weight in our considered view.

 

So far as the provisions of the of Section-6 the Indian Post Office Act, 1898 is concerned, it is limited to the liability against the employee as to the mis-delivery, wrong delivery, non-delivery of any parcel. So far as right of a consumer to be compensated due to deficiency of service or negligence on the part of the service provider, it is an independent and additional remedy as contemplated by Section-3 of the Consumer Protection Act, 1986 which is as under:

 

"The provisions of this Act shall be in addition to any not in derogation of the provisions of any other law for the time being in force".

 

In this juncture we may rely the decision reported in (2009) 1 CPR (NC) 41 in the case  Superintendent of Post and Telegraph Vs. M.L. Gupta  where in it has been held that,  In our opinion, all laws are and have to be subordinate to the Constitution of India which was promulgated in the year 1950. When the provisions of Section 6 of the Indian Post Offices Act, 1898, are examined on the touchstone of Article 14 of the Constitution, in the peculiar facts of this case, we have no doubt in coming to the conclusion that this provision is being used, abused as well as mis-used by the appellant in this case

it is very clear that there has been a default and gross negligence on the part of the postal authorities in not ensuring the delivery of the postal articles to the right addressee, which has caused pecuniary loss to the complainant. Hence, we feel that Provisions of Section 6 of the Post Offices Act would not be applicable in case of deficiency in services.

The present case is a clear case of default, gross negligence on the part of postal authorities without showing any satisfactory explanation for non or miss delivery the article which has caused mental agony and loss to the complainant. The postal authorities cannot shirk their liability under the provisions of the Indian Post Office Act, 1898.

 

In this contest reliance has been placed upon a decision of State Consumer Disputes Redressal Commission, Pandicheri held in Ravi S/O Venkatesa Counter vs The Sub Post Master, Auroville.... on 5 February, 2015, held that  the Indian Post Office Act was enacted a century back when there were no Consumer Protection Act . The Consumer Protection Act has been framed and enacted with an intention to make good the loss to the consumers which is welfare legislation. Therefore, we are of the view that based on Section 6 of the Indian Post Office Act, 1898 alone we cannot hold that the respondents are not liable to pay any compensation to the complainant/appellant.

 

In the light of the foregoing discussion and based on the above decisions of higher Forum and the materials to its entirety it is crystal clear that the O.Ps have deficiency in service and thus, the Complainant is entitled to get relief and compensation. Now it is to be considered that how much compensation the Complainant is entitled to get.

 

The word compensation has been given very wide connotation by the Supreme Court in Ghaziabad Development Authority vs Balbir Singh which includes the loss suffered by any consumer as to the injustice done to him, emotional suffering, physical discomfort suffered by him at the hands of the OPs.

 

Not delivering the post article to its addressee clearly constituted a willful act of deficiency in service on the part of the O.Ps.

 

 The Complainant deprived of getting a job as she desired on account of deficiency in service of the O.Ps particularly the O.P. No.2& 3. At present the Complainant is an unemployed youth and continuing for searching Job. Thus, in our considered opinion an amount of Rs.50,000/- as compensation will meet the ends of justice.

 

Accordingly, the complaint succeeds but in part.

 

Hence, it is

                                                O R D E R E D

 

That the present Case No. CC/105/2018 be and the same is allowed on contest against the O.P. No. 2 & 3 with cost of Rs. 5,000/- and dismissed against the O.P. No. 1 without cost.

The O.P. No. 2&3 are hereby directed to pay Rs.50000/- to the Complainant as compensation for their deficiency in service, harassment and also for mental pain and agony suffered by the complainant.  The O.P. No. 2&3  are to comply with this order within 45 days from the date of this order, failing which the O.P. No. 2&3  are liable to pay interest @ 8% per annum on the entire awarded sum for a period until realization. The petitioner shall also be at liberty to execute the said order in accordance with law. The O.Ps may realize the aforesaid amount from the particular employee who is responsible for the occurrence.

 

Let plain copy of this Final Order be made available and be supplied free of cost to the concerned party/Ld. Advocate by hand/Registered Post with A/D forthwith for information and necessary action, as per Rules.