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Judgment
Challenge in this Revision Petition under Section 21(b) of the Consumer Protection Act, 1986 (in short, ''the Act'') is to the order dated 03.11.2015 in First Appeal No. 1396/2012 passed by the State Consumer Disputes Redressal Commission, Rajasthan, Jaipur (in short, "the State Commission"). By the impugned order, the State Commission allowed the appeal preferred by the Complainant and set aside the order of the District Consumer Disputes Redressal Forum, Dosa, Rajasthan (in short, "the District Forum") directing the Opposite Parties, jointly and severally to pay to the Complainant, a sum of 25,000/- as damages, together with 10,000/- as costs, along with interest @ 9% p.a., from the date of filing of the Complaint, i.e., 25.02.2011, till the date of realization.
The facts material to the case are that the Complainant, on 08.05.2010 sent an Application Form through Speed Post vide No.ER015200621 IN from Post Office, Mahua, Mandawar Road, Mandawar, Mahua to the Principal Registrar, High Court of Jabalpur, Madhya Pradesh. It was averred that the last date of receipt of the said Application Form in the Office of the Principal Registrar, High Court of Jabalpur, Madhya Pradesh, was 12.05.2010 and, therefore, the Complainant had dispatched the Application five days before the due date. It was pleaded that only on account of negligence of the Opposite Parties that the Article was delivered two days later, i.e., two days after the last date of 12.05.2010 and on account of this reason, the Application of the Complainant for the Post of "Civil Judge, Jr.Division" was rejected on the ground that the Application was received on 14.05.2010. The Registrar vide letter dated 30.06.2010 informed the same to the Complainant. It was pleaded that the Complainant applied under RTI Act, 2005, seeking information about the said delay, under which application, he received information that the said Speed Post Dak ought to be delivered within a minimum period of 48 hours to a maximum period of 72 hours. The Complainant specifically averred that he had spent lakhs of Rupees for the preparation of his exam as he had taken a house on rent, in Jaipur and his parents had borrowed a loan of 2,58,000/-, on a high interest and it is only on account of negligence of the Postal Department that he could not appear for the Judicial Officer''s Exam and that it was always his dream to join the Madhya Pradesh Judicial Services. The Complainant got issued a legal notice dated 27.01.2011 demanding that the Opposite Parties should pay damages for their negligence, but received no response. Hence the Complainant seeking directions to the Opposite Parties to pay an amount of 7,00,000/- together with litigation expenses and costs.
The Postal Department filed its Written Version stating that the Department does not have any knowledge as to what date the said article should reach the destination and that the delay caused in delivering of the article is not because of intentional negligence. All other allegations were denied except for the fact that the postal article bearing No. ER015200621 IN was sent by the Complainant on 08.05.2010. It was admitted that notice dated 27.01.2011 was received by the Opposite Parties and they replied vide letter dated 01.02.2011 stating that an inspection is being conducted and that on receipt of the report, they would be informing the Complainant. They further submitted that the said article was delivered to the addressee on 14.05.2010. It was averred that the Postal Department was exempted from any responsibility under Section 6 of the Post Office Act, 1898 in case of any loss, wrong delivery or delay and if the concerned officer, has committed the act willfully, only then the Department could be held responsible. It was pleaded that Speed Post service is a premium service in which, after the fixed time period, if there is any delay in the delivery of the article, there is a provision for refund of the amount paid in the form of Speed Post charges for the damages and accordingly, an amount of 22/- was refunded. The Postal Department discharges a sovereign act and, therefore, the services rendered by the Postal Department are constitutional in nature and they cannot be made liable under Section 6 of the Post Office Act, 1898 and hence cannot be made liable as the Complainant could not establish that there was any deficiency in service on behalf of the Postal Authorities in sending the article late to the said destination.
Aggrieved by the said order, the Complainant preferred an Appeal before the State Commission.
The State Commission allowed the Appeal, observing, as follows :- " The learned District Forum dismissed the complaint of the complainant while admitting that the complainant has not produced any documentary proof which proves that there was any personal enmity of the complainant with the employee or the officer of the India Post Department or the above act has been committed by the employee or the officer of the India Post Department intentionally. In our opinion, the above opinion is not appropriate. In the present case, the negligence committed by the India Post Department, the dak of the complainant which should have been received on the fourth day, was received on the sixth day by the addressee, which is covered in the category of the negligence of the opposite parties. In such matters, there is no necessity of proving any enmity of the complainant with any employee or officer of the department.
On account of the negligence of the opposite parties, the application form of the complainant reached two days later, which deprived him of appearing in the examination of judiciary. Therefore, the metal shock to the complainant is natural. On the basis of the above discussion, we consider it appropriate that a sum of Rs.25,000/- as the damages and a sum of Rs.10,000/- as the litigation expenses may be paid to the complainant".
Dissatisfied by the order of the State Commission, the Department of Posts, The Post Master General, Assistant Superintendent and the Sub-Post Master, preferred this Revision Petition.
Learned Counsel for the Revision Petitioners filed an Affidavit on 07.04.2016, on a direction of this Commission, vide order dated 11.03.2016, stating as under :- "The minimum period for delivery of speed post article is prescribed in departmental rulings and as per citizen charter are as under:-
Local 2 days
Same State 2 to 4 days
Neighbouring State 2 to 4 days
Rest of country 4 to 6 days".
It was further stated in the Affidavit that no official was personally found responsible for any delay in the delivery of the said Speed Post article.
Vide order dated 27.04.2016, this Commission recorded that there was no indication about the nature of enquiry, stated to have been conducted, on the basis whereof, it is stated that no official was found personally responsible for delay in the delivery of the Speed Post article. It is evident from the information furnished in the affidavit that the said article had to be delivered within 2-4 days, but the same was actually delivered after the expiry of 4 days. Learned Counsel appearing for the Petitioners prayed for yet another opportunity to file a better Affidavit to answer the questions raised by this Commission vide order dated 11.03.2016. The Learned Counsel filed Affidavit dated 30.08.2016 stating that the information regarding the relevant record could not be given as the records were not traceable at their end, as the same had been either weeded out or destroyed due to one reason or the other. NSPC, New Delhi, failed to intimate the day-by-day disposal of the said Speed Post article for the period 09.05.2010 to 13.05.2010 and for this reason, the delay could not be inquired into. Paras 5 & 6 of the Additional Affidavit dated 30.08.2016, read as follows:
"5. That the Supervisor, NSPC Cantt. Jabalpur intimated vide their office letter No.SPCC/Misc/CPT/10-11 dated 19.02.2011 that the said speed Post article was received in SPC Jabalpur on 14.05.2010 which was further sent to High Court Post Office for delivery and the same was delivered on same day to the addressee. Supervisor NSPC Jabalpur was requested vide this office letter No.CR 12-50/DCPF/11 dated 25.04.2011 to preserve the relevant record of the case till final settlement. Now, when the present revision petition No.541/2016 filed before National Commission, SSPO''s Jabalpur Division again requested to intimate the bag No., dispatch list, mail list or other relevant documents by which the concerned SPA was received at their office vide this office D.O. Letter No.CR 12-50/National Commission/15-16 dated 23.05.2016. SSPO''s Jabalpur Division intimated vide their office letter No.CR/National Commission/Jaipur Mfl/16 dated 06.06.2016 that all efforts are made to trace the said reference regarding SPA but no record has been traced.
According to facts stated above, in absence of documents/relevant record, errant official could not be identified. Copy of all the material record would be placed before Hon''ble Commission, with the permission of the Hon''ble Commission at the time of hearing".
Learned Counsel for the Revision Petitioners vehemently contended that the said record could not be traced and, therefore, the reason for the delay in delivery of the article cannot be ascertained.
Learned Counsel appearing for the Petitioners assailed the order on the sole ground that in view of clear statutory provisions contained in Section 6 of the Indian Post Office Act, 1898, both the Fora below committed a patent illegality in awarding compensation against the Postal Department. In support, Learned Counsel placed reliance on the decisions of this Commission, rendered in Head Post Master, Post Office Railway Road Kurukshetra, Haryana & Ors. Vs. Vijay Rattan Aggarwal, etc. - RP No. 15 of 1997, and Postmaster, Imphal and others Vs. Dr. Jamini Devi Sagolband - I (2000) CPJ 28 (NC ) . It was asserted that for the delay in delivery of the letter, in question, to the Complainant, no element of willful neglect or default could be attributed to the Postal Department.
In order to appreciate the stand of the Post Office, it would be necessary to analyse the scope of Section 6 of the Post Office Act, 1898, 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 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".
This Commission in Post Master General, West Bengal Circle, General Post Office (GPO) Vs. Dipak Banerjee & Anr. , IV (2015) CPJ 329 (NC), has observed as under :
"11. The Section is in two parts. The first part provides for a complete immunity to the Government, unless some liability is undertaken by the Government under the statute in express terms. Similar immunity is extended to the officers of the post office. The second part carves 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 willful act or default of such an 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 willful 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 or damage to the postal article, as the case may be, in the course of transmission of the article by post. In other words, the provision, an antiquated piece of legislation, dating back to the year 1898, grants total 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 fraud or willful act or default on the part of its employee is proved.
The object and reach of Section 6 of the said Act, was elaborately explained by a five member Bench of this Commission in Post Master, Imphal & Anr. Vs. Dr. Jamini Devi Sagolband - I (2000) CPJ 28 (NC) , with copious references to English and Indian Decisions by the Hon''ble Supreme Court and various High Courts. It was held that the relationship between the sender of a postal article and the post office is governed by the Indian Post Office Act and not by Law of Contract or Tort, and that there is no liability at all for loss or non-delivery of a postal article except in so far as specifically provided by the Statute under Section 33 and Section 6 or any other regulation or rule.
Therefore, the question is, whether, the Complainant has proved that the delay in delivery of the letter, transmitted by Speed Post for delivery, was due to willful act or default on the part of an employee of the Postal Department?.
It is a cardinal principle of law that ordinarily the burden of proving the fact rests on the party who asserts the affirmative issues and not on the party who denies it. Nevertheless, there is distinction between the phrase ''burden of proof'' and ''onus of proof''. Explaining the said fine distinction, in A. Raghavamma and Anr. Vs. A. Chenchamma and Anr.AIR 1964 SC 136 , a three Judge Bench of the Hon''ble Supreme Court held that "there is essential distinction between burden of proof and onus of proof. Burden of proof lies on the person who has to prove a fact and it never shifts, but the onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence.
In order to give effect to the objective of the Act, i.e., to provide for better protection of the interests of the consumers, if an addressee of the letter is able to create a reasonable degree of probability that there was willful default on the part of an 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.
The fact remains that the Complainant, though, had sent the article/Application Form by Speed Post, on 08.05.2010 at 11.30AM from Mahua Post Office, Mahua, addressed to the Principal Registrar, High Court of Jabalpur, Madhya Pradesh, for the Post of Civil Judge, Junior Division, the last date of receipt of the said Application Form was 12.05.2010, he lost an opportunity of attending the Examination as the subject article was delivered to the addressee on 14.05.2010.
To reiterate, Learned Counsel for the Revision Petitioners took shelter under Section 6 of the Indian Postal Act and despite two opportunities given by this Commission, on 11.03.2016 and on 27.04.2016, to file Affidavit and a Better Affidavit, respectively, stipulating the reasons for the delay in the delivery of the article, the Department had stated in the Affidavits, that the relevant record was not available and, therefore, the exact reason could not be ascertained.
The only stand of the Postal Department in this case is that the relevant records are not available and therefore the reasons cannot be ascertained. The attitude of the Postal Department is a deliberate attempt to hide the real reason for the wrong doing of its employee(s) in not delivering the letter within the norms prescribed by the Postal Department itself. Such conduct of the Postal Department, leads to irresistible conclusion that there was a willful default on the part of its official(s) concerned, which is not being disclosed and, therefore, the case of the Complainant falls within the ambit of the exception carved out under Section 6 of the said Act. Having held so, and there being a clear deficiency of service under Section 2(1)(g) of the CPA, 1986, I am of the opinion that a reasonable compensation of 25,000/- awarded by the State Commission is completely justified.
For all the aforementioned reasons, it is held that there is no illegality or infirmity in the order of the State Commission and this Revision Petition is dismissed in limine . No order as to costs.