The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of the Opposite Parties to impeach the Final Order dated 26.04.2017 passed by the District Consumer Disputes Redressal Forum, Murshidabad at Berhampore (for short, Ld. District Forum) in Consumer Complaint No. 56/2016. By the impugned order, the Ld. District Forum allowed the complaint lodged by the Respondent Yakub Anam Chowdhury under Section 12 of the Act with the direction upon the Appellants/OPs to pay Rs.10,000/- as compensation and Rs.5,000/- as litigation cost in favour of the complainant/respondent within 45 days from the date of order.

       The Respondent herein being Complainant lodged the complaint before the Ld. District Forum asserting that he carries on a firm on a partnership basis under the name and style as ‘Sherf-Ul-Anam-Chowdhury’.  The complainant has stated that he was a regular tax payer and in the month of February, 2015 the Tax return came to the address of their firm but OP No.2 i.e. the postal peon denied to deliver the same to any of the partners and in this regard, the attempts of the complainant went in vain.  Thereafter, complainant approached the Post Master of Barua Sub-Post Office (OP No.1) for delivery of such document but the Sub-Post Master denied the same and informed that the matter is to be dealt with by Superintendent of Post Offices, Murshidabad Division.  The complainant had to travel all along at Berhampore P.O. on several occasions but all his efforts went in vain.  Ultimately, in the month of February, 2016 after lapse of more than one year, the Superintendent of Post Offices, Murshidabad Division had written a letter to the complainant informing him about the matter.  The complainant has alleged that the opposite parties have committed fraud practice upon him and it is also glaring example of deficiency in services.  Hence, the complaint with prayer for several reliefs including compensation and litigation cost.

       The Appellants being Opposite Parties by filing a written version have stated that the disputed article was sent in the name of Sherful Anam Chowdhury, who has expired on 13.09.1998.  The address which has been written on the article did not reflect that Sherful Anam Chowdhury is a partnership firm.  Subsequently, the complainant submitted a copy of partnership firm from which it could be ascertained that partnership firm is ‘Sherf-Ul-Anam-Chowdhury’ and one of the partner of the firm is Sherful Anam Chowdhury.  The Postal Department held an enquiry and came to know that there is an existence of such firm in a house without any sign board.  At last the article was delivered to the complainant, who received the same as a partner of the said partnership firm and as such there was no deficiency in services.

          After assessing the materials on record, the Ld. District Forum by the impugned judgement/final order allowed the complaint with certain directions upon the OPs as indicated above.  Challenging the said order, the Opposite Parties have come up in this Commission with the present appeal.

      Mrs. Ratna Brahamchari with Mr. Sanjoy Das, Ld. Advocate for the appellant has submitted that the Ld. District Forum without prove of any fraudulent act or default on the part of appellants/OPs passed an order of compensation which is contrary to the provisions of Section 6 of Indian Post Office Act, 1988.  She has also drawn my attention to several documents indicating that on account of death of addressee, Sherful Anam Chowdhury on 13.09.1998, the article could not be made over to the respondent.  She has drawn my attention to the Partnership Deed dated 16.12.2008 between the partners of ‘Sherf-Ul-Anam-Chowdhury’, particularly Clause -20 of the said Partnership Deed which provides in case of death, the wives of all the partners shall be the owners of the deceased partner’s share and in absence of wife, it will be divided among the other legal heirs in accordance with law.  Ld. Advocate for the appellants has submitted that being responsible employee of Postal Department, the respondents were under obligation to deliver the article to the appropriate person and as the addressee was dead, an enquiry was held for which there has been delay in handing over the article.  However, when the respondent/complainant received the article and as there was no default on the part of the appellants/OPs, the Ld. District Forum should not have passed the order impugned.

      Mr. Abhimanyu Banerjee, Ld. Advocate for the Respondent, on the other hand supporting the decision of the Ld. District Forum has contended that the only obligation on the part of Postal Department to deliver the article and they have no option to take any extraneous circumstances and when there has been a long delay in handing over the article, the impugned order based on proper reasoning should not be interfered with.

      I have given due consideration to the submission made by the Ld. Advocates appearing for the parties and scrutinised the materials on record.

     The fact remains that the disputed article was sent in the name of Sherful Anam Chowdhury, who was expired on 13.09.1998.  Naturally, it was not possible for postal peon (OP No.2) to deliver the article to the others when addressee of the article was dead.  The dispute cropped up as the name of the partnership firm was ‘Sherful Anam Chowdhury’ and in the place wherefrom the said business was running did not display any notice board etc.  Quite naturally, OP No.2 informed the matter to the Sub-Post Master of Barua S.O. (OP No.1).  Immediately, OP No.1 referred the matter to the Superintendent of Post Offices, Murshidabad Division informing about the matter and sought instruction in that regard.  The Superintendent of Post Offices, Murshidabad Division directed Mr. R.N. Murmu, Inspector of Post, Murshidabad South Sub Division to hold an enquiry.  After enquiry, the Inspector of Post submitted his report with a note that the complainant/respondent refused to take delivery of the letter by inserting the word ‘M/s. Sherful Anam Chowdhury’.  Ultimately, Superintendent of Post Offices, Murshidabad Division by a letter dated 07.01.2016 sought clarification from Govt. Pleader of Murshidabad regarding delivery of articles and after obtaining the clarification from Govt. Pleader of Murshidabad on 19.01.2016 agreed to instruct the Sub Post Master of Barua S.O. to deliver the same to the respondent.  Thereafter, the OP No.1/appellant no.1 duly delivered the article to the respondent.

      Section 6 of Indian Post Office Act, 1898 appears to be relevant to ascertain the alleged negligence or deficiency on the part of Postal employees, which 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 undertake 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”.

     The Section has two parts – (1) it provides a complete immunity to the Government, unless some liability is undertaken by the Government under the statute in express terms and similar immunity is extended to the officers of Post Office; (2) It curves out an exception to the blanket immunity to its officers and provides that they can incur liability if it is shown that the loss, misdelivery, delay or damage etc. had been caused fraudulently or by the wilful act or default of such an employee.  Therefore, the plain reading of the section makes it manifestly clear that unless it is proved that the loss, misdelivery or delay has been caused fraudulently or by wilful act or default on the part of a postal employee, no claim would lie against the postal department merely by reason of delay in transmission of the article by Post.

       The Ld. District Forum has observed that the opposite parties have not been able to produce any report about the enquiry conducted by them with respect of delay of delivery of the article at the destination and the opposite parties have tired to absolve themselves from their liability by taking shelter of Section 6 of the Indian Post Office Act, 1898.  The observation made by the Ld. District Forum is contrary to the evidence on record because immediately after receiving information as to the death of Sherful Anam Chowdhury, OP No.2 being Postal Peon informed OP No.1 i.e. the Post Master of Barua Sub Post Office, who in turn reported the matter to the Superintendent of Post Offices, Murshidabad Division and thereafter an enquiry was held.  Therefore, I am constrained to say that the Ld. District Forum has passed such observation without proper scrutinising the materials on record.  

      In a decision reported in IV (2015) CPJ 329 [Post Master General – Vs. – Dipak Banerjee & Anr.], the Hon’ble National Commission has held that if any addressee of a letter is able to create a reasonable degree of probability that there was wilful default on the part of the employee of the Postal Department, the onus would shift on to the said department to discharge the onus to prove its denial, particularly when the addressee, the aggrieved party does not have any access to the internal working of the post office.

     In the case before hand, the respondent/complainant has not averred anything as to wilful default or fraudulent act on the part of appellants/OPs and in Paragraph-5(h) of the petition of complaint, it has been stated that the opposite parties practised fraud upon the complainant.  However, it has not been stated by the complainant what kind of fraud has been practised by the opposite parties and further the opposite parties being employees of Central Government, there was no occasion on the part of them to commit fraud in delivering an article.  In his evidence on affidavit, the respondent/complainant has stated that he approached the OP No.1 for delivery but he denied the same and advised to deal with the matter with the Superintendent of Post Offices, Murshidabad Division.  The complainant has also admitted that the article was ultimately delivered to him after lapse of more than one year.

     The facts and circumstances of the case indicate that the period of one year was elapsed for holding enquiry and there are overwhelming evidence on record that after holding enquiry, being satisfied, the Superintendent of Post Offices directed the OP No.1 to make over the article to the complainant/respondent.  In such a situation, question of fraudulent act or wilful default on the part of opposite parties, as alleged by the complainant, do not stand.

     Considering all the above, I have no hesitation to hold that the impugned judgement/final order is not based on proper reasoning keeping in view the provisions of Section 6 of the Indian Post Office Act, 1898 and as such the impugned order being not sustainable in the eye of law is liable to be set aside.

       For the reasons aforesaid, the appeal is allowed on contest.  However, there will be no order as to costs.

      The impugned final order/judgement is hereby set aside.

Consequently, CC/56/2016 stands dismissed.

          The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Murshidabad at Berhampore for information.