Gopalan vs N.MOIDEENKUTTY

IN this appeal preferred against the order passed by the Consumer Disputes Redressal Forum, Malappuram in O.P. No. 84/2000 whereby the Forum below directed the opposite party (appellant herein) to pay by way of damages Rs. 1,000/- to the complainant (respondent herein) the correctness and validity of order is under challenge.

ASSAILING the finding recorded by the Forum below it is submitted on behalf of appellant before us that without adverting to the facts that the documents relied on by the complaint himself totally disproved the allegations made against the appellant/opposite party by the complainant in his complaint the Forum below jumped to the conclusion which is quite unwarranted and unjustified (after making some observations using high sounding words) and it is also contended before us that the documentary evidence produced by the complainant/respondent proved that money order sent from the Edarikode Post Office was last in transit and appellant was not guilty of any wilful act or default. It is also argued on behalf of the appellant that Exts. R1 and R2 produced by the appellant also established clearly the fact that there was no wilful act or default on his part in discharging his duties and without making any attempt to consider the evidence in the proper persepctive sweeping observations were made by Forum below to fasten appellant with liability. At the out itself we may state that there is considerable force in the submission made on behalf of the appellant (though the respondent was appearing in person when the appeal was taken up for hearing he was not present). We have carefully gone through the evidence (only documentary evidence has been produced by the parties.

Undisputed facts emerged are that the respondent/complainant sent a money order (Rs. 1,500/-) from the Edarikode Post Office on 26.7.1999 to his son studying at the material time in Thangal Kunju Musaliar Engineering College, Kollam and the payment of money order was made to the son of complainant only on 9.9.1999 and that too after making a complaint by the respondent to the postal authorities about the non-delivery of money order (duplicate money order issued from the Edarikode Post Office was paid to the payee on 9.9.1999). Thus there is no denial of the fact that there was delay in delivering the money order.

THE pertinent question to be considered is whether there is wilful act or default on the part of the appellant in sending the money from Edarikode Post Office as asserted by the complainant. Before embarking upon a discussion of the evidence produced by the parties to determine the sustainability of the order we may point out that though allegation of rude and improper behaviour on the part of the appellant/opposite party towards complainant is made when the complainant went to send the money order is made in the complaint he (complainant/respondent) had not chosen to adduce any evidence in support of his case on that aspect. We may point out that the evidence produced by him (Exs. P3 and P4) proved that the allegation made by him in para 1 of the complaint that when he expressed his inability to give change when appellant asked for change he was abused by the appellant in foul and filthy language and he was threatened by the appellant saying (Regional language omitted) is found not proved or established by the postal authorities in the inquiry conducted against the appellant. Exts. P3 and P4 produced by the complainant and relied on by him proved that inquiry made into the complaint of respondent had not established any foul play on the part of the Sub-Post Master (Ext. P3) and inquiry made by the postal authority about the alleged misbehaviour of appellant towards respondent is also not established (Ext. P4). Respondent has not produced any material before the District Forum or before us to come to a conclusion that no proper inquiry was conducted by the department and a farce inquiry was conducted by the department with the ulterior object or intention of saving the appellant, though it is alleged in the complaint that the inquiry was conducted in such a manner so as to save the appellant. Without adducing any evidence to prove the case that inquiry was conducted by the postal authorities with the ulterior object of saving appellant we cannot jump to the conclusion that no proper inquiry was conducted and the authority who conducted the inquiry was biased and partial and sole aim of conducting such an inquiry was to save the appellant.

FROM the mere fact that appellant admitted in his version that as change was not available stamp worth Rs. 5/- was given to the respondent when respondent agreed to receive stamp in lieu of change we are not inclined to accept the case of the complainant that conduct of appellant was reprehensible and unbecoming of a public servant. No such conclusion is also possible or warranted from the mere fact that the postal department gave an advice to the appellant to be more courteous in his behaviour towards the customers. No material is available before us to accept the case of the complainant pleaded that delay in delivering the money order was attributable to wilful and deliberate or intentional act (act of delay in delivering money order) on the part of the appellant and also temporary misappropriation of the money order by the appellant. We may repeat that apart from making such bald allegations in his complaint complainant has not chosen to adduce any evidence either by mounting the witness box or by adducing evidence in the shape of affidavit swearing the facts asserted. Why he has avoided witness box to depose in terms of the grave allegations made in the complaint or to produce evidence in the shape of affidavit remains unexplained and that aspect is conveniently omitted to advert by the Forum below. We canot also hold accepting the case of the complainant that the delay in delivering money order was due to atrocious, rude and defiant attitude and blame worthy conduct of appellant and the reason is lack of evidence to prove such an allegation and production of documentary evidence by the respondent himself disproving those allegations. The crucial question to be considered is whether the evidence on record warranted a conclusion that the delay in delivering the money order was due to any default or wilful act of the appellant.

FOR answering the question we have to consider Section 48(c) of the Post Office Act and Section 48(c) reads thus: "No suit or other legal proceedings shall be instituted against (the Govt.) or any officer of the Post Office in respect of- (e) the payment of any money order being refused or delaying by or on account of any accidental neglect or omission or mistake by, or on the part of an officer of the Post Office or for any other cause whatsoever, other than the fraud, or wilful act or default or such officer."

To sustain the impugned order there should be material to hold that appellant was guilty of fraud or wilful act or default.

THE assertion made in the complaint is that the delay in delivering the money order was due to wilful act of the appellant. For want of evidence in support of such a case and availability of evidence produced by the complainant himself to prove that appellant is not guilty of any wilful, intentional or deliberate act we are not inclined to sustain the impugned order. Ext. P3 proved clearly that there was no foul play on the part of appellant. We are called upon to answer the question whether any evidence is available to prove a case of default on the part of the appellant. The meaning of the word default was considered by Bowen L.J. and the oft-quoted passage dealing with the meaning the word default is worthy of extraction here. "Default means nothing more, nothing less than not doing what is reasonable under the circumstances, not doing something which you ought to do, having regard to the relations which you occupy towards the other persons interested in the transaction." (In Re-yound and Houston (1-1885-31-Ch-D. 17 4). Observation made by National Commission in Superintendent of Post Office and Others v. Upavokta Surakshya Parisad, III (1996) CPJ 105 (NC)=1997 (1) CPR 11 is "Not doing something what one ought to do is also an act of Will and, therefore, will be covered by wilful act..."

There is no material to show that the appellant was not doing something which he ought to have done or was not doing what was reasonable under the circumstances. Evidence produced by the complainant himself (Exts. P3 and P4) and R1 and R2 produced by the appellant helps us to reach such a conclusion. There is evidence to show that the money order was sent from Edarikode Post Office without any delay. Therefore, the appellant cannot be asked to explain the delay of 45 days in delivering the money order when he forwarded the money order for delivering it to the payee from Edarikode Post Office without any delay. So we cannot hold that there was default on the part of the appellant and he was not responsible for the delay in delivering the money order after 45 days. No case of commission of fraud is also proved against the appellant. So appellant cannot be held liable for the delay in delivering the money order and we entertain no doubt that there is total dearth of evidence before us to hold that the appellant was in any way responsible for the delay in delivering the money order. The Forum below''s finding is unsustainable on the ground of want of evidence to prove a case of fraud or wilful act or default alleged against the appellant.

THERE is no escape from the conclusion that Forum below''s finding is solely rested on conjectures and surmises and unsound reasoning is given by the Forum below for coming to the wholly unreasonable conclusion. No damages can be ordered to be paid by the appellant to the respondent. Hence appeal is allowed upsetting the order passed by the Forum below. Taking into consideration the facts and circumstances of the case parties are directed to bear and suffer their costs throughout. Appeal allowed.