(Delivered on 26/07/2018)

PER SHRI B.A. SHAIKH, HON’BLE PRESIDING MEMBER.

1.         This appeal is filed  by the original  opposite party (for short O.P.) feeling aggrieved  by an  order dated 16/12/2011 passed by the District Consumer Forum, Nagpur  in consumer complaint No. 256/2011, by which the  complaint has been partly allowed.

2.         The case of the respondents herein  /original complainant  as  set out by him in consumer  complaint  No.  256/2011 in brief is  as under:

            The complainant  handed over one  registered envelop  to the appellant on 27/08/2009 to be sent by Speed Post  to the  addressee . The said  envelop was containing  an application  for admission  in  Birla Institute of Technology, Patna. The last date for  submitting  same  was 31/08/2019. The said  envelop was to reach on the given  address within  48 hours for date of  dispatch. However,  it was reached  to the addressee on 01/09/2009 and therefore, addressee  refused  to accept  it. Hence,  said envelop was returned  on 05/09/2009. Therefore, the appellant  rendered  deficient  service  to the respondent.  The respondent  issued notice dated 24/09/2009 to the  appellant  but appellant did not  give response to  it.  The respondent  lost one year of his education  and thus he suffered  loss of Rs. 2,50,000/- . Therefore complainant /respondent herein  filed consumer complaint  against the appellant  claiming from  it   Rs. 2,50,000/- for  loss suffered  by him and  further  claiming from it  Rs. 25,000/- for  mental  and physical  harassment  and Rs. 20,000/- for litigation  cost.

3.         The appellant  resisted  the complaint  by filing reply.  The appellant  admitted that  the envelop was handed over to  it by the respondent  on 27/08/2009 for  sending  by Speed Post  to the  addressee namely  Birla Institute of Technology, Patna. The said envelop was received  by Patna Speed Post Center on 30/08/2009 but it was Sunday. The said envelop  was  sent to the aforesaid college, which was  reached  to the said college  on 01/09/2009. But  it was refused  by the said college and hence, it was  returned  with the endorsement  as “Refused”.  Notice sent by the respondent  was   received by the appellant on 29/09/2009 and an  enquiry  was made on  receiving  that  notice by the appellant.  The appellant  was ready to pay compensation of Rs. 25/-   to the  respondent  for  delay and hence,  the said compensation  was sanctioned  and letter dated 03/06/2010 was sent to the  respondent  asking him to accept  the compensation  of Rs. 25/- for delay.  The respondent  received that letter but the respondent  did not accept  the said amount  of Rs. 25/- from the  Seminary Hills Post Office, Nagpur. Therefore,  Post Master, Seminary Hills Post Office, Nagpur vide letter  dated 20/07/2010 informed the  appellant  that  the respondent  has not  received  Rs. 25/-.  As per provision  of  section  6  of the Indian Post Office Act, 1898,  if there is delay in delivery  of the any articles   or envelop  then Postal  Department cannot be held responsible.  However, the appellant was ready to pay Rs. 25/- as compensation,  but respondent   did not  accept the same. Hence,  it was requested by the appellant  that  the  complaint  may be dismissed.

4.         The Forum below after hearing  both the parties and considering evidence brought  on record  accepted the  aforesaid submission of the  respondent & passed the impugned order  and thereby directed the appellant  to pay to the respondent  compensation of Rs. 10,000/- towards  deficient  service  provided by the appellant to the respondent & also  towards  physical and mental  harassment  and also to pay him  litigation cost or Rs. 2000/-. The original opposite party/appellant  has thus challenged   the said  impugned order by filling  this appeal.

5.         We have heard Advocate Mr. Shekhani holding  for  Advocate R.G. Agrawal appearing  for the appellant.  We have also heard  Advocate Mr.  D.N. Mathur appearing for the  respondent  and we have  perused the record and proceedings of  appeal.

6.         The learned advocate of the appellant  filed one document  showing that  there is  period of 3 to 4 days  for delivery of the article  by speed post  from Nagpur  to Patna. He submitted that  though the  envelop was sent  by  speed post from Nagpur  on 27/08/2009, it was reached  at Patna on 31/08/2009 and there was Sunday on 30/08/2009 and article was delivered on 01/09/2009, but it was refused.  He therefore, submitted that  there was no delay on the part of the appellant.  He relied on the decision  of the Hon’ble National Commission in the case of Post Master , Imphal  & Others Vs. Dr. Jamini Devi Sagolband, in revision petition No. 986/1996, decided on 02/12/1999. In that case it was held that   in a number of cases the view  has been taken by the National  Commission that  no relief can be granted  to  a complainant  on the mere allegation of loss or non delivery of the post article and  postal  employee may be made liable  provided an action  was brought  against him and it was proved that  he was guilty of fraud or willful act or default  leading to the loss of the postal article or non delivery  thereof.

 7.        The learned  advocate of appellant has  also relied  on decision  in the case of Post Master, Head Post Office, Akola Vs. Vinayak Gopalrao Kulkarni, in first appeal No. FA/14/94, decided by this Circuit Bench on 27/06/2018. In that case  this Commission  had found that  there was no  allegation  of any fraud or willful  act  or  default on the part of the  appellant  causing the loss of postal  article. Therefore, it was held that   the respondent  in that  appeal is not entitled  to claim any compensation.

8.         The learned advocate of the appellant  therefore, requested that  as in the instant case  there is no  willful default  or negligence  on the part of the  appellant, the  impugned order may be set aside.

9.         On the other hand, the learned advocate of the respondent  supported the impugned order and submitted that  when the envelop was sent  on 27/08/2009 then it ought to have been  delivered on 31/08/2009 but it was not  delivered  on 31/08/2009 and hence  there is  clear cut violation of the rules of the postal  department of delivery of the  speed post article. He therefore, submitted that  even the appellant  admitted in the appeal and  reply filed  to the complaint  that  there was delay of one day and  offered   Rs. 25/-  as compensation. Hence,   now the appellant cannot  say that  there was  no such delay in delivery of the envelop. He also submitted that provisions of section 6 of Indian Post Office Act, 1898 are not helpful to the appellant. As per said provision  if  there is willful act or default on the part of the appellant then  compensation  can be claimed  & due to   willful  act    & default  of appellant  , delay is caused  in  present case. The appellant has not given any explanation for non-delivery of envelop on 31/08/2009 when envelop was reached on 30/08/2009 at Patna.  Therefore, according to him there was actual delay of two days in delivery of envelop and when the appellant has not given any explanation for said delay.

10.       The learned advocate of  respondent  also relied on the  decisions   in the following  cases in support  of the submission  that  in identical   facts and circumstances  the Hon’ble  National  Commission  has granted  compensation   for  willful default.

i.          Post Master General  Vs. Manoj Kumar, 2017(4) CPR 631 (NC).  In that case  the learned State Commission had directed petitioners to pay to each of the complainants sum of Rs. 25,000/- as compensation for mental harassment  and agony undergone by them for losing chance to participate  in examination. It was held in the said  case that in the absence of any  cogent  circumstances being brought on record by  Postal  Department  to show that there was no willful act or default on part of the its staff , having  failed to delivery packets within committed period  of 2 to 4 days, there was will full  default on part of the petitioner. It was also observed  that default  has caused  to complainants  a great deal of anguish and mental  agony of losing  precious chance of participating  in an important  competitive examination  for which they have  been awarded paltry compensation  of Rs. 25,000/-.  Revision petitions  was thus  dismissed in limine.

ii.          Post Office Vs. Akhilesh Gover, 2017(4) CPR 570 (NC). In that case  the Hon’ble National Commission held that  speed post is  a premium business service  of department  for which there is a higher tariff . Articles are to be delivered  within a specified  period. There appears to be no monitoring of receipt /dispatch and delivery of speed post articles by post office concerned or any other authority.  It is for petitioner  to render service for their  premium product of speed post.There is clear cut deficiency  of service on their part and  department continues to seek shelter under section 6 of Postal Act for its omission and  commissions in non delivery  of article in time. Order of State Commission  does not call for any interference nor does  it suffer  from  any infirmity  or erroneous exercise of  jurisdiction  or material  irregularity.  Revision  petition  was thus dismissed.   

iii.         Union of India  Vs. Arjun Bhagat, 2018(1) CPR 179 (NC).  In that case, the  Hon’ble National Commission  held that  the petitioner  cannot take  shelter against  section 6 of  Indian  Post Office Act especially  in light of fact that  no plausible  explanation was given  for non delivery of letter. There was  no response from petitioner  to complaint  given  by him. There  was no enquiry  report  filed  before Fora  below.  Attitude of Department  creates reasonable degree of probability that there was  willful  default  on the  part of  employees of Postal Department.

iv.        Chief Post Master General Vs. Garima Gupta,  III (2017) CPJ 251 (NC).  In that case the Hon’ble  National Commission  held that  petitioner  failed to  bring on record  any evidence  to show that  mis –sending  was not on account  of willful act or default  on  the part of employee, as stipulated in the latter part of section 6 of Post Office Act.

v.         Department of Post Vs. Gajanand  Sharma, I (2017) CPJ 172(NC).  In that  case the Hon’ble   National Commission  observed that  the attitude of the Postal Department  is a deliberate attempt to hide the real reason for wrong doing of its employees in not  delivering the letter within the norms  prescribed by Postal Department  itself- Such  conduct of postal department  leads to irresistible  conclusion that there  was willful default  on part of its officials concerned.

vi.        Amit Verma Vs. Senior  Superintendent of Post Office, III (2008) CPJ 61 (J & K State Commission.)  In that case it is observed  by the learned State Commission that  the  delay is  not explained  and the contentions that  parcel was  misplaced & could not be located  with all efforts,  does not absolve opposite parties (O.ps.) from fault committed in rendering  hired service in time. Hence, willful  fault and imperfectin in  rendering service  is proved. Deficiency in service is proved. The  protection guaranteed  under section 6 of  Post Office Act is  not available to opposite party. The  complainant being  consumer is  entitled to relief for  compensation for mental  agony and financial  loss  along with cost. 

            The learned advocate of the respondent therefore requested that applying  the aforesaid  decisions   to the present case, the appeal  may be dismissed.

11.       In the instant case  it is  seen from the submission  made  in the appeal memo in para No. 7 of the appeal memo that  appellant was ready  to pay Rs. 25/- as compensation  to the respondent  as per rule of the Post Office Manual due for  delay in delivery  of article posted by  respodnent.  Moreover,  the appellant in para No 3 of their reply filed to the complaint also admitted that they had offered   Rs. 25/- for delay that occurred  in  delivery of the envelop sent  by him  by speed post  on 27/08/2009.  Therefore, we find that  now in appeal  the appellant cannot  raise plea that   actual there is no such delay in  delivery  of  the envelop sent by  speed post by the  respondent.

12.       We also find that  when  the appellant himself  admitted  that  there  was delay  in delivery of  the speed post article/envelop and when he was already offered Rs. 25/- as compensation  to the respondent ,it cannot be said that  there  was no  willful default  on the part of the appellant  in delivery of  envelop within  given time.  All the  aforesaid   decisions  which are relied  on by the learned advocate of the respondent  are applicable to the facts and circumstances of the present case  which  are identical to those of  the said cases.  The aforesaid  two decisions  relied on the learned advocate of the appellant  are not applicable  to the facts and circumstances of  the present case since  in both the said  cases  there was no willful  default on the part of the appellant  was proved  like willful default  of the present case.

13.       We therefore  hold that  the provisions  of  section 6 of the Indian Post Office Act, 1898 are of  no assistance  to the appellant when it  is  proved   from the facts brought  on record  of the present case and aforesaid admission  of the appellant   that there was willful default  on the  part of the appellant   due to which  the   delivery of the article /envelop was delayed  for two days. Hence,  respondent suffered  loss as stated  in complaint  Hence,  we hold that  the District Consumer Forum has rightly come to the conclusion  that the original  complainant/respondent herein   is entitled  to seek compensation. Moreover,   considering that  the application  sent by the respondent  to  the college  for admission was refused due to said  delay, the District Consumer Forum  properly awarded compensation  of Rs. 10,000/- and litigation cost of Rs. 2000/-.  We therefore,  hold that  the  present appeal is  devoid of merits and it deserves to be dismissed.

ORDER

i.          The appeal is dismissed.

ii.          No order as to cost in appeal.

iii.         Copy of order be furnished to both the parties, free of cost.