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Judgment
THIS appeal is directed against the order by the District Consumer Disputes Redressal Forum, Valsad at Navsari holding that the appellants were negligent in handling the parcels and because of their negligence, the address on the post parcel were besmeared/ obliterated and, therefore, could not be sent by the post office at Bombay to the addressee at Japan and, therefore, the respondent-complainant suffered loss. The District Consumer Disputes Redressal Forum condoned the contention that the appellants were protected under the provisions of Section 6 of the Post Offices Act and, therefore, not liable for any damages or compensation.
THE respondent handed over three samples to be delivered at Japan, Singapore and Rishikesh at the G.I.D.C. Post Office at Vapi. THE samples of the product to be sent to Japan valued at Rs. 1000/-, that of to be sent to Singapore valued at Rs. 380/- and the sample for Rishikesh valued at Rs. 25/-. Out of the three parcels booked on 13.7.92, two parcels were returned after about two months in torn conditions and the respondent on enquiry came to know that the postal authorities had sent the parcel to the main post office at Vapi from where the same were sent to Bombay. At Vapi the parcels were not properly handled and attended and because of the monsoon the address written in ink on parcel had besmeared. THE post office at Bombay therefore could not read the addresses as they were illegible and the parcels were then returned to the complainant. THE complainant also stated that likewise about 500 parcels were returned from different parts of the country to the post office at G.I.D.C, Vapi. THE Respondent, even though had grievance about two parcels, asserted the claim for one parcel sent to Japan. According to the respondent, even though short time was left for presentation of the samples, it was sent through courier but the time limit fixed for sending the parcel to Japan had expired and reached late and, therefore, respondent could not be successful to get the order for supply of the articles as the order was placed with other producers. If at all the parcel would have been delivered to the addressee, the complainant could have received the order worth about Rs. 5 lakhs and earned profit of atleast Rs. 75,000/-. THE respondent had also spent Rs. 2000/- for enquiry about the parcel as the delay was caused in delivering to the addressee. THE samples were deteriorated and, therefore, the complainant suffered loss of Rs. 3200/- and as parcels were sent in torn condition loss caused was Rs. 1400/-. THE respondent accordingly claimed Rs. 86,245/- for the deficiency in service of the appellants. The appellants-opponents by written statement asserted that they were not liable to pay the damages and were protected under the provisions of Section 6 of the Post Offices Act. They also contended that District Forum had no jurisdiction to decide the complaint and the respondent was not consumer within the meaning of Consumer Protection Act, 1986. The booking of the parcel was, however, admitted but it was asserted that they were taken to Bombay and due care was taken and they were not negligent in handling at any stage of the transit. According to the appellants, the respondent had not written the address on the parcel properly and were illegible and, therefore, it was difficult to know where the parcels were to be sent and the parcels could not be served to the addressee only because of the negligence of the respondent and they were returned by the post office at Bombay. The alleged loss by the respondent is also denied.
The District Consumer Disputes Redressal Forum held that it had jurisdiction to entertain the complaint and the respondent is consumer under the provisions of the Consumer Protection Act. It also held that the parcel was negligently handled and, therefore, not served. In view of the District Consumer Disputes Redressal Forum, the very fact that the parcels were accepted and the receipt was given by itself establishes that the addresses were properly written on the parcels and particularly on the parcel to be sent to Japan for which grievance is made. The District Consumer Disputes Redressal Forum therefore held that only because of the negligent handling of the parcel the address besmeared and could not be sent by the post office at Bombay to the addressee at Japan and was returned. The District Consumer Disputes Redressal Forum has also expressed the view that such act of negligence is not protected by the provisions of Section 6 of the Post Offices Act
SHRI Ketan Dave, learned Advocate for the appellants asserted that the appellants are protected under the provisions of Section 6 of the Post Offices Act and even if it is accepted that the address was besmeared during the transit, for that act also n6 compensation can be granted as that is protected under the provisions of Section 6 of the Post Offices Act. In suport of his submission, SHRI Dave referred The Presidency Post Mastter & Anr. v. Dr. U. Shankar Rao, II (1993) CPJ 141 (NC). Considering the facts on record, we agree with the findings of the District Consumer Disputes Redressal Forum that the address on the parcel sent to Japan was besmeared because of the negligent and careless handling after it was delivered at the post office at Vapi. The very fact that the parcel was accepted and the receipt was issued established the fact that the address was properly written and was legible. The complainant has stated that fact and as such there is no reason not to accept it. Apart from that, if at all the address would not have been legible, the parcels would not have been accepted and not only that the same would not have been forwarded to the post office at Bombay for onward transmission to Japan. Naturally, the post office at Bombay could not forward it to the address at Japan as it found that the address was besmeared and illegible and, therefore, had returned to the original post office which in turn returned to the respondent. It was only because of the negligent handling of the parcel it could not be transmitted onwards from Bombay to Japan. The question arises as to whether such negligent act is protected under the provisions of Section 6 of the Post Offices Act. Section 6 of the Indian Post Offices Act provides that: "The Government shall not incur any liability by reasons of the loss, misdelivery or delay 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 wilful act or default."
What is protected under the provisions of Section 6 is the liability caused by reason of loss, misdelivery, delay or damage to the postal article. This is not the case of loss, misdelivery or delay or direct damage to the postal article. If such gross negligence is caused by which the address is besmeared/ obliterated, such act is not protected under the provisions of Section 6 of the Act. The provisions of Section 6 do not provide the blanket or total indemnity for any act of the Postal authorities or the Central Government. If that would have been the intention of the Parliament, then only 4 acts as specified in the Section would not have been protected and complete indemnity of anything done to the parcel article delivered to the postal authority would have been protected under that Section. If the act which results into return of the article to the addressee is not covered by any of the 4 acts specified in Section 6, then the Government or the postal authorities are liable for the damages. This is the case of gross negligence, the protection of which is not contemplated by the provisions of Section 6 of the Post Offices Act and, therefore, the appellants are liable for the damages except the claim for the damages caused to the parcel The judgment of the National Commission in the Presidency Post Master & Anr. (supra) does not lay down the law that any such negligent act is protected under the provisions of the Act. After quoting the provisions of Section 6 and referring the submission by the Counsel for the postal authorities, it is only observed in para 12 that: "We are of the opinion that both the claim petitions referred to above are not maintainable in view of Section 6 of the Indian Post Offices Act. As noticed earlier there is no allegation that the loss, misdelivery or delay occurred on account of fraudulent or wilful act of any particular Postal employee."
The facts of the two Revision Petitions were that in one case the invitation cards sent by ordinary post were not delivered to the addressee in time before the function and in another case the postal receipts sent by Registered Post were stolen and the delivery of the goods was taken on the basis of such postal receipt. The facts in the instant case establish the gross negligence in handling the parcels during the transmission/transportation by the postal authorities.
SHRI Dave, learned Advocate for the appellants has not urged that the respondent is not consumer and it was not a consumer dispute. The charges were paid for the post parcel and services were hired or availed for consideration by the respondent. The deficiency in service was also caused as the imperfection or shortcoming or inadequacy in the manner of performance which was required to be maintained by or under the law or in pursuance of the contract or otherwise in relation to the service was found. Any service undertaken to be performed either under the statute or under the contract or otherwise is covered under the Consumer Protection Act. By accepting the pacel, the postal authorities accepted the services to deliver the article to the addressee and if that is not done because of the negligent act, it is certainly deficiency in service. The District Consumer Disputes Redressal Forum awarded the compensation of Rs. 11,640/- which included Rs. 1000/- for the postal charges of the parcel, Rs. 1000/- for the damage to the parcel and deterioration of the samples, Rs. 5000/- for the loss of profit, Rs. 2000/- for telephone and enquiring about the parcel. It appears that there was some mistake in calculation. Apart from that, that much amount could not have been awarded by the District Consumer Disputes Redressal Forum. We agree that respondent had to spent Rs. 1000/- for the parcel and the respondent is entitled to recover that amount. The District Consumer Disputes Redressal Forum has recorded that the respondent contended that it sustained damage of Rs. 4600/- but the evidence were not produced and, therefore, on the basis of reasonable guess work, the amount of Rs. 1000/- should not be awarded for the deterioration in the sample of goods and torn condition of the parcel. Under Section 6 of the Act discussed above, any damages to the parcel during the transmission is protected and, therefore, the District Consumer Disputes Redressal Forum should not have awarded Rs. 1000/- for the damage to the parcel. The District Consumer Disputes Redressal Forum has awarded Rs. 4640/- for sending the sample through courier service as the receipts were produced on the record to establish that fact. Sending the parcel by courier service was totally as independent act and, therefore, the appellant should not have been held liable for that. The amount of Rs. 5000/- is awarded for the loss of profit against the claim of Rs. 75,000/-. The District Consumer Disputes Redressal Forum recorded that the respondent did not lead any evidence for the exact loss sustained. However, the District Consumer Disputes Redressal Forum thought it proper to award the total amount of the loss on the reasonable guess work because the respondent would have certainly sustained loss for loosing the order. The respondent had only sent the sample which the party was still to select and place the order. The party has to select particular samples from various samples advertised and, therefore, it cannot be said in certainty that the respondent would have earned the profit. It is quite possible that the respondent might not have been favoured with the order by the addressee. For claiming the damages for such commercial transactions, it is necessary that loss/damage must be established and no damages can be awarded on guess work. The respondent is, therefore, not entitled to the amount of Rs. 5000/- awarded by the District Consumer Disputes Redressal Forum for the loss of profit. The respondent claimed Rs. 2000/- for enquiring about the parcel but the District Consumer Disputes Redressal Forum did not award as no bills were produced. The cross objections are not filed against that finding. In view of that the order by the District Consumer Disputes Redressal Forum is required to be modified and the respondent should be awarded Rs. 1000/- only. We, therefore, pass the following order. ORDER The appeal is partially allowed and the order of the District Consumer Disputes Redressal Forum, Valsad is modified to the extent that instead of direction to pay Rs. 11,640/-, we direct the appellants opponents to pay Rs. 1000/- with 12% interest and cost of Rs. 250/- to the respondent-complainant awarded by the District Consumer Disputes Redressal Forum. Parties to bear their own cost of this appeal. Appeal partially allowed.