Foreign Postal Department & 2 Ors vs Ashok Aggrawal

M. Shreesha, Member

Aggrieved by the orders dated 27.07.2016 in Appeal No. 265 & 266 of 2014 passed by Rajasthan State Consumer Disputes Redressal Commission (for short "the State Commission") Opposite Parties (hereinafter referred to as "the Postal Department") has preferred these Revision Petitions under Section 21(b) of the Consumer Protection Act, 1986 (for short "the Act").

By the impugned order, the State Commission has dismissed both the Appeals preferred by the Postal Department and upheld the Orders of the District Consumer Dispute Redressal Forum, Jaipur Fourth (for short "the District Forum"). In CC No. 1045/2012, the District Forum allowed the Complaint and directed the Postal Department to pay in Indian currency the equivalent value of $10,350 as on the date of order along with interest @ 9% p.a. with Rs. 3,500/- towards damages and Rs. 2,500/- towards costs. IN CC No. 816/2012 the Postal Department was directed to pay in Indian currency the equivalent value of $5478.72 as on the date of order along with interest @ 9% p.a., with Rs. 3,500/- towards damages and Rs. 2,500/- towards costs.

RP No. 3117/2016

Briefly stated, the facts of the case in RP No. 3117 of 2016 are that the Complainant is a Dealer and Exporter of Gem Stones and having received an order of $10,350 from his customer/client namely Sh. Virender Kumar r/o 104-33, 92, Avenue Reckmond Hill, New York - 11418, USA, the Complainant sent the consignment through Postal Department vide invoice No. NGL-14/13.7.2002 through speed post No. EE-830077169 dated 17.07.2002. It is averred that his client did not receive the said parcel. The Complainant visited the Postal Department a number of times to know the whereabouts of the said consignment. The Postal Department informed him that the consignment had been delivered. However, his client repeatedly informed the Complainant that he had not received the said consignment. It was only on 18.10.2002 that he was informed that the consignment was misdelivered to some other person and the consignee should contact the USA local post office with a Complaint of mis-delivery by filling up Form No. 452. It is stated in spite of giving the complete address of the consignee, the Postal Department had negligently delivered the consignment to a different person and thus committed deficiency of service. Despite repeated efforts of the Complainant, the Postal Department did not get the consignment delivered to the correct person/client of the Complainant and also did not pay any damages to him. Thus, the Complainant suffered a loss of $10350 and also loss of goodwill. Hence, the Complainant issued a legal notice dated 02.01.2013 to the Postal Department but there was no response.

Aggrieved, the Complainant filed the Complaint before the District Forum seeking the following reliefs:-

"1) That the respondents be directed to pay an amount of $10,350 along with interest @ 24% per annum to the complainant;

2) The respondents be directed to pay an amount of Rs. 15,00,000/- on account of loss of reputation of the complainant and not delivering the consignment to the consignee and further delivering the consignment to some other persons due to the negligent services of the respondents;

3) The respondents further be directed to pay an amount of Rs. 11,000/- being legal expenses;

4) Any other award be made in favor of the complainant which this Forum deems fit and proper."

The Postal Department filed their Reply admitting therein that the Complainant had booked the subject consignment, but state that they are not aware of the contents of the said consignment/parcel as the Complainant produced the sealed parcel at the booking counter which was booked after accepting the required fees. It is denied that the Complainant repeatedly approached seeking information about whereabouts of the parcel but was not provided the same. It is stated that on receipt of the Complaint, the Postal Department immediately searched the website of the USPS for status of disposal of the parcel and as per the said website the subject parcel was delivered to one V. Kumar on 23.07.2002 at 4.07 p.m. Complainant was informed about the same by the Postal Department vide its letter bearing No. SPC/JPO/OW/FOREIGN/02 dated 22.08.2002. However, the Complainant again addressed a letter dated 25.09.2002 that the parcel was not received by the consignee and that the same was delivered to some other person and requested that the matter be investigated. The matter was hence investigated through USPS which advised that the consignee be informed to contact the local post office and fill Form No. 452 and the Complainant was informed accordingly vide letter No. SPC/OW-371/FOREIGN/2002 dated 18.10.2002. However, instead of approaching the Local US Post Office through form No. 452, Complainant filed the Complaint before the District Forum. It is stated that there is no deficiency of service and unfair trade practice on the part of the Postal Department. It is further pleaded that in terms of Section 6 of the Post Office Act, 1898, the Postal Department and its employees are free from all liabilities for the missing, mis-distributed, delay or damage in sending items. It is averred that the Postal Department is a functionary of the state and does not involve any commercial activity and hence the Complainant is not entitled to claim any relief/damages from the Department and the Complaint is liable to be dismissed with costs.

We have heard the Learned Counsel for the parties and perused the material on record.

Learned Counsel appearing for the Postal department vehemently argued that the tracking report suggested that the articles were delivered at 4.07 p.m. on 23.07.2002 at Avenue Reckmond Hill, New York and that the item was received by one Mr V. Kumar. He further submitted that the Complainant had got the goods insured only for Rs. 1000 at the time of booking of the consignment and, therefore, both the fora below have committed irregularity in allowing the entire amount to be paid by the Department. It is also the case of the Petitioner/Department herein that as per Section 6 of the Post Office Act, 1898 the Department being a statutory body, the officials of the Postal Department discharge a sovereign act and, therefore, the services rendered by the Postal Department are constitutional in nature and they cannot be made liable. Vide an order dated 16.02.2017 this Commission directed the Department to seek instructions as to whether any enquiry as requested by the Consignor vide letter dated 25.09.2002 was made by the Postal department and if so, the Department was directed to place on record the said report by way of an affidavit. When the matter was taken up on 20.07.2017 this Commission recorded as follows:-

"In pursuance of the query raised during the course of hearing on 16.02.2017 as to whether any enquiry, as requested by the consignor vide his letter dated 25.09.2002, had been made by the Postal Department, an affidavit has been filed by the Senior Superintendent, Post Office, Jaipur, wherein it is stated that on receipt of the Complaint from the consignor, the matter was taken up with the Manager, Speed Post Centre, New Delhi, who vide his letter dated 12.10.2002 had informed the Manager, Speed Fost Centre, Jaipur that an enquiry was made with U.S.P.S. Authorities 'on telephone" and, according to them, the addressee may contact the local post office and file Form-452 for international enquiry. Accordingly, the Complainant was advised to contact the focal post office.

Prima facie, we are not satisfied with the said explanation. We defer our final opinion on the said stand but would direct the Chief Post Master General to examine the entire file pertaining to the case and submit his report on the issue involved in the present Revision Petitions, filed by its Foreign Postal Department. The evidence for the telephonic discussion between the Speed Post Centre, New Delhi and U.S.P.S. Authorities, along with the contents of the said talk, shall be placed on record by the Senior Superintendent, Post Office, Jaipur, who has filed the present affidavit. The requisite affidavit shall be filed within six weeks, as prayed.

List for hearing on admission on 13.09.2017." (Emphasis supplied).

In the affidavit filed by the Senior Superintendent of Post Offices, it is deposed that the reply given by the petitioner to the consignor vide letter dated 18.10.2002 was based on the information given by the Speed Post Centre, New Delhi and that a telephonic enquiry which was also made. It is stated that the Superintendent Foreign Post, New Delhi and the Manager CCC, AMPC, New Delhi informed the deponent that the record pertaining to the period during which the complaint was made was already weeded out and destroyed in due course and hence cannot be provided. From the averments made in the written version, the grounds of the revision petition, the submission of the Counsel and the affidavit filed by the Senior Superintendent of Post Offices, it is evident that there is no documentary evidence to establish whether any enquiry was conducted with respect to the present case despite the fact that the parcel which was sent contained precious and semi-precious stones. On a query from the Bench the Respondent drew our attention to the copy of the insurance policy covering the subject period, which establishes that the amount insured by New India Assurance Company Limited for the said quantity for finished, polished precious and semi-precious stones was valued at $19,910.65 as on 17.07.2002. The Marine declaration form further establishes this value.

It is pertinent to mention that the Foreign Postal Department is completely silent with respect to the rules governing them while accepting a parcel. The declaration and the invoice showing precious and semi-precious stones was given as per the submission of the Complainants. For better understanding of the case the letter dated 22.08.2002 sent by the Complainant to the Petitioner requesting for institution of an enquiry regarding the missing parcel is reproduced as their under:-

"Neel Gem Stones

Manufacturer-Exporter Of Gem Stones, Silver Jewelry & Handicrats)

419 Rasta Kothi Mani Ran Ji               Tel:141-562-634

Kang Ganj Bazar Jaipur-302003          Fax: 141-566-684

India                                                    email-aske@neelgemstones.com

SUB - Institution of an enquiry regarding ISN post parcel no. EE830077169 IN dated 17.07.2002, booked from Jaipur G.P.O., Jaipur to New York-USA.

Dear Sir,

We write to request you to institute an enquiry regarding the insured post parcel no. EE830077169 IN Time: 14:59:26 Date:17.07.2002

From Jaipur G.P.O. to New York-USA.

We furnish the following details of the same as required having received no reply from the party either through bank nor directly from the party we are afraid that this parcel have not yet reached destination. We hope you shall immediately take up the matter with the Foreign Authority and oblige us.

The insured Speed Post parcel have been addressed:-

Vijandra kumar

104-33, 92 Avenue

New York-USA

Tel 917-541-5025

Tel:719-850-9648

Value of the stamp fixed on the parcel is Rs.4133/-

The contents of the parcel is precious and semi-precious:-A copy of the said invoice No. NGS 141 / date 17.07.2002 valued for us$10,350 exported under PP Form No. PS-421557 is enclosed.

The weight of the post parcel on postal receipt is enclosed

wt. 9230 gms.

Insured with post office for Rs.1,000/-

We hope immediate action in the matter shall be taken and we shall be intimated about the result of the same.

Thanks

Yours truly

For Neel Gem Stones

Proprietor"

Admittedly, the Department had made a telephonic enquiry and the same was deposed in the affidavit filed by the Senior Superintendent of Post Offices. A more detailed enquiry ought to have been done by the Department in addition to the telephonic enquiry. At the cost of repetition, there is no material on record to establish that a detailed enquiry was ever done. The Insurance Policy filed by the Complainant establishes the value and nature of the consignment sent. We find that there was negligence on the part of the Petitioner, herein, in not conducting any detailed enquiry with respect to the delivery of the subject parcel taking into consideration that it contained semi- precious stones and further it is not the case of the Postal Department that the Complainant did not declare the contents of the parcel.

Now we address ourselves to the submission made by the Learned Counsel appearing for the Postal Department that no liability can be fastened upon them as they are protected by Section 6 of the Post Office Act, 1898. At this juncture it is relevant to place reliance on an order of this Commission in Department of Post & Ors. Vs. Gajanand Sharma I(2017) CPJ 172 (NC), which has attained finality. The ratio of the same is reproduced as under:-

"13. This Commission in Post Master General, West Bengal Circle, General Post Office GPO v. 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 v 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 Another v A. Chenchamma and Another, 1963 (SLT SOFT) 139= 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."

From the afore-noted ratio it is seen that if an addressee is able to create a reasonable degree of probability that there was willful default on the part of the Postal Department or its employee the onus would shift to the Department to prove the same as the addressee does not any access to the internal working of the Post Office. In the instance case the only stand of the Postal Department is that the records pertaining to that period are not available and also that they had made a telephonic enquiry. It is also relevant to mention that there is no rule position brought on record by the Department herein when there is a case of loss/mis-delivery of a parcel in a foreign country. Admittedly, the Complainant informed the Department on 22.09.2002 and again on 25.09.2002 stating that the parcel was not received but Department informed the Complainant only vide letter dated 18.10.2002 that the Complainant should contact the USPS Authorities through form No. 452 and, therefore, we are of the view that there is a willful default in not conducting a proper enquiry. Keeping in view the afore-noted reasons, we find the Postal department deficient in not conducting an enquiry and in being negligent with respect to following up the matter when a formal Complaint was made regarding the loss of the parcel. To reiterate, the Complainant has filed a copy of the New India Assurance Policy showing the value of the consignment sent during the subject period. However, there is contributory negligence on the part of the Complainant in insuring the parcel with the Postal Department for only an amount of Rs. 1000/-, and, therefore, we are of the considered view that both the Fora below ought not to have directed the Department to pay the entire value of the consignment. Keeping in view the afore-noted reasons, in the interest of justice and to balance equities, 50% of the value of the consignment as on the date of the District Forum order, be paid to the Complainant. Time for compliance within four weeks failing which the amount shall attract interest @ 9% from the date of filing of the Complaint till the date of realization. Revision Petition is partly allowed to the extent indicated above.

RP No. 3118/2016

It is the Complainant's case that he had booked two parcels with the Postal Department on 04.10.2002 valuing $10,400 to be sent to his customer at Sweet Creek Creation L.L.C 1785, Lawrence Place Florence, Oregon, USA. It is not in dispute that one of the parcels i.e. 830096741 (IN) weight 18,928 grams reached its destination. It is the Complainant's case that the second parcel i.e. EE830096755 IN did not reach its destination. After repeated requests he was informed vide letter dated 03.01.2003 that the said parcel reached at Kennady AMC on 07.10.2002 but no information was provided with respect to further delay. Learned Counsel appearing for the Complainant submitted that only after filing of the Written Version before the District Forum the Complainant was informed that the parcel EE 830096755 (IN) reached its destination on 27.01.2003 and the receipt of the parcel was signed by one Mr. D. John.

It is the case of the Postal Department that an affidavit was filed by the Senior Superintendent Post Office, Jaipur on 09.03.2017 before this Commission stating that after the receipt of letter dated 25.11.2002, the matter was taken with Speed Post Centre, New Delhi. The Manager of the said Centre informed Jaipur Post Office on 15.02.2003 that the said article in question was despatched from SPC, New Delhi on 04.10.2002 vide dispatch No. 220 and it reached USA on 07.10.2002 and on the same day was sent to customs. There was no delay and the article was finally delivered on 27.01.2003 and the same was informed in the reply notice. In compliance of the order of this Commission the track reports dated 03.01.2003 and 01.02.2003 were filed. The track report dated 03.01.2003 states that item arrived in the United States at Kennedy AMC at 2.28 a.m. on 07.10.2002 and thereafter no further information is available. It is stated that 'earlier it was sent to customs'. It can be seen from the said tracking report of United States Postal Department Service that the parcel bearing No. EE830096755 IN was delivered at 11.19 a.m. at the said address and was signed by one Mr. D. Johnson. Hence we are of the considered view that there is no evidence brought on record by the Complainant that the item was not delivered. If the item has been detained by Customs the Postal Department cannot be made to pay any compensation. However, it is seen from the record that the item was despatched on 04.10.2002, reached USA on 07.10.2002 and there was absolutely no information given to the Complainant though he had repeatedly asked for details with respect to delivery of the said consignment as he had sent two parcels on the same day and only one parcel was delivered and there was no information about the second. Further the period during which the parcel was lying in the customs is not supported by any documentary evidence. Admittedly, despite repeated requests, letter dated 25.11.2002 and Legal Notice dated 17.09.2002, the Postal Department informed the Complainant only on 03.01.2003. The parcel contained precious and semi-precious stones and the mental agony suffered by the Complainant on account of lack of information by the Postal Department cannot be undermined. In this case also, the ratio in Gajanand Sharma (supra) regarding the onus of proof shifts to the Department to prove its denial when the facts establish that there is a reasonable degree of probability that there was wilful default on behalf of the Department/or its employee, squarely applies as the Department has failed to establish by way of any documentary evidence that it has informed the Complainant immediately of the exact period when it was lying with the Customs. However, since the track report evidences that the article had finally reached its destination on 27.01.2003, we are of the considered view that both the Fora below have erred in awarding the entire amount. We are of the view that only compensation can be awarded for the delay in intimating the Complainant for which an amount of Rs. 1,00,000/- would meet the ends of justice. This amount is inclusive of both compensation and costs. Revision Petition is allowed in part with the afore-noted directions. Time for compliance within four weeks failing which the amount shall attract interest @ 9% from the date of filing of the Complaint till the date of realization.