M.SUKESH vs OFFICIAL-IN-CHARGE 'DAK ADALAT'

THE complainant was a candidate to appear for the Inter-mediate Examination of Institute of Cost & Work Accountants of India (for short the I.C.W.A.) to be held during 26th to 29th December, 1990. THE Bangalore Chapter which trained him for the examination failed to provide Admit Card when approached by the candidate on 13.12.1990. THE candidate was informed that his Admit Card was not received from their Calcutta Main Office and he was advised to wait for the receipt of the same from Calcutta Office to whom they were referring the matter. Even on 24.12.1990 the complainant did not receive the admit card from the Calcutta Officer and so he could not appear for the said examination. On 14.1.1991, by ordinary post the Admit Card and examination sheet were received by the complainant. He noticed from the postal envelope that the Calcutta Branch of ICWA had posted the letter and the admit card on 18.12.90. Hence, there was a delay of 27 days caused by the Postal Department in delivering the admit card to him. Hence, he has filed this complaint for compensation of Rs. 1,56,000/- against the Postal Department on account of its negligence.

THE complaint is resisted by respondents 1 & 2 by contending inter-alia that the compliant is not maintainable, that the Postal Department is not liable to pay any damages on account of delay, in view of Section (6) of the Indian Post Office Act, 1898; that the delay was due to heavy rains disrupting the rail traffic during November-December 1990 and due to the strike of the RMS Employees, who refused to perform overtime during December 11th to 18th; that the complainant could have approached the Bangalore Office and got the provisional admit card and appeared for the examination; that the complainant failed to send a telegram to the Head Office as instructed in Instruction No. 13 appended to the application form for admission; that the complainant was not serious to take up the said examination, as he has not acted as per the instruction and that the complainant is not a consumer within the meaning of Section 2(1)(d)(ii) of the Consumer Protection Act, 1986. Respondents 3 & 4 have resisted the complaint by contending inter-alia, that the complaint is false, frivolous, baseless and vexatious; that the complainant is not a consumer under the Act with reference to respondents 3 and 4, that the complainant failed to comply with instruction No. 13, as he failed to send a telegram about the non-receipt of the admit card ten days before the first day of the examination, that the complainant who approached the Bangalore Chapter on 13.12.90, was told to go over there, in case he did not receive the admit card 10 days prior to the examination and to collect the provisional admit card to be issued by the Bangalore Chapter and that the complainant is not entitled to any compensation.

The complainant has given evidence as CW 1 and has produced Exhibits C 1 and C 2. RWs 1 to 3 are examined on behalf of the respondents and exhibits R 1 to R 5 have been marked.

THE first point that arises for determination in this case is whether the complainant is a consumer within the meaning of Section 2(1)(d)(ii) of the Act (hereinafter referred to as the ''Act''). It is not disputed that the complainant was undergoing coaching at the Bangalore Branch of ICWA by paying fees and that he had sent in application form for admission to the examination to be conducted during 26th to 29th December, 1990 by paying necessary examination fees. Hence, it is clear that he had engaged the services of respondents 3 and 4 for consideration. No doubt, the Admission Card was posted at Calcutta by respondent No. 3. That cover was addressed to the complainant. Hence, it can be said that the complainant was the beneficiary of the services of the Postal Department which were hired by respondent No. 3 for consideration. Therefore, we have no hesitation in holding that the complainant is a consumer within the meaning of Section 2(1)(d)(ii) of the Act.

THE next question that arises for determination in this case is, whether there was any deficiency in service of any of the respondents and whether the complainant is entitled to any compensation. It is not disputed that Respondent No. 4 forwarded the application for admission to the examination to be held during 26th to 29th December, 1990 by ICWA, to respondent No. 3. It is also not disputed that respondent No. 3 posted the admit card to the complainant on 18.12.90 in the Calcutta Post Office as can be seen from the postal seal on exhibit C-1. It is also not disputed that the said cover containing the admit card was delivered to the complainant on 14.1.1991, after the examination was over. From the said admitted facts, it is clear that there was no deficiency in service on the part of the respondents 3 and 4. Moreover, according to Instruction No. 13 printed on the reverse of the application form, exhibit R-1, in case of non- respect of Admit Card ten days before the first day of the examination, a telegram should be sent to the institute quoting the Student Registration number. The complainant has failed to send a telegram on or after 16.12.1990 about the non-receipt of the Admit Card to the Calcutta Office of ICWA, as per the said instruction. Had he sent the telegram as per the said instruction, perhaps he would have received the Admit Card by telegram and would have taken the examination. From Exhibit R-2, it is clear that the name of the complainant was included in the attendance roll of the candidates. Visualising the postal delays, respondent No. 3 had written to respondent No. 4 as per exhibit R-2 to admit the candidates whose names appeared in the roll sheet, in case they do not receive the admit cards in time. According to the complainant, he approached respondent No. 4 on 13.12.1990 on receipt of a letter from respondent No. 3 stating that he won''t be eligible to take the examination in December 1990 and that he was told by one Mr. Kumar that he was write to the Calcutta Office to inform the reason for not sending the admit card to him. He has not produced the letter said to have been received by him from the Calcutta Office. Respondent No. 4 has produced the records to show that Kumar had resigned on 2.7.90 and that he was no longer in service of respondent No. 4 with effect from that date. Hence, his evidence that he met Mr. Kumar in December 1990 cannot be accepted as true. Moreover, if he was not qualified, his name would not have been mentioned in the admit roll, exhibit R-2. Hence, his evidence that he had received such a letter must not be true. He has also stated that, thereafter, he visited the Office of respondent No. 4 on 16.12.1990 and that he was told that no reply had been received from the Calcutta Office. According to him, he rang up the Basavangudi Office of respondent No. 3 on 18.12.1990 and was given the same reply. He has stated that on 21.12.1990 he again went to the Basavangudi Chapter and was told that they had not received any intimation. According to him, he rang up the Basavangudi Office on 24.12.1990 and learnt that no reply had been received from the Calcutta Office. Balaji Rao, who is working as Honorary Secretary of the Bangalore Chapterhas stated that the complainant approached the Bangalore Chapter on 13.12.1990 and they told him to wait upto 16.12.90 and to approach them thereafter, if he did not receive the admit card by them, for getting the provisional admit card. In his complaint, the complainant has stated only about his visiting the Bangalore Chapter on 13.12.1990. He has not stated therein about his visits to the Bangalore Chapter after 13.12.90. Balaji Rao (RW1) has no reason to give false evidence against the complainant. In fact, they have issued provisional admit cards to about 25 candidates as is clear from Exhibit R-4. RW-2 is one of those candidates who received provisional admit cards and appeared for the exam. So respondent No. 4 could have issued the Provisional Admit Card to the complainant, if he had approached respondent No. 4 on or after 16.12.1990. The complainant also has admitted that he did not appear for the examination held in June 1991. This also shows that he must not have been keen in taking the exam, in December 1990. No doubt, there was delay on the part of the Calcutta Post Office in transmitting the Admit Card contained in Exhibit C-1, which was delivered to it on 18.12.1990. But RW 3, who is an Asstt. Director of Postal Services, Bangalore has stated that there was strike of All India RMS employees of the Postal Department from 17.12.1990 to 23.12.1990 and due to that there was lot of accumulation of mails and that caused delays in the delivery of mails. No doubt, respondents 1 & 2 have not mentioned the said fact in their written statement. But it is stated therein that there was agitation of railway employees and they were refusing to do overtime from December 11th to 18th. RW 3 has given the reason for not mentioning the said facts in the written statement reason is that they received the information regarding the strike after filing the written statement, from their Calcutta Office. There is no reason to disbelieve the said evidence of RW-3. It establishes that there was strike of the RMS Employees of the Postal Department during 17th to 23rd of December, 1990.

IN Consumer Unity and Trust Society, Calcutta v. The Chairman and Managing Director, Bank of Baroda, O.P. No. 2 of 1988 decided by the National Commission on 18.5.1989, the National Commission was pleased to hold that there is no liability for damage during suspension of business by a bank on account of an illegal strike of the employees. Strikes are included in force majeure as observed in M/s. Dhanrajmal Gobindram v. M/s. Shamji Kalidas and Company, 1961 (3) SCR 1020. Therefore, the Postal Department is not liable for the delay caused on account of strike by its employees. The complainant has also not done all that he could, under the circumstances as stated above, to mitigate the damages. Hence, the complainant is not entitled to any compensation as claimed by him.

IN the result, the complaint is dismissed. Under the circumstances of the case, we direct the parties to bear their own costs. Appeal dismissed.