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Judgment
Dr. Inder Jit Singh, Presiding Member
The present Revision Petition (RP) has been filed by the Petitioners against Respondent as detailed above, under section 58(1) (b) of Consumer Protection Act 2019, against the order dated 22.06.2020 of the State Consumer Disputes Redressal Commission, Himachal Pradesh at Shimla (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No.229 of 2019 in which order dated 29.04.2019 of District Consumer Disputes Redressal Commission Una, H.P. (hereinafter referred to as District Forum) in Consumer Complaint (CC) No. 86/2016 was challenged, inter alia praying to:-
(i) quash and set aside the order dated 22.06.2020 in FA/229/2019 passed by the State Commission and dismiss the complaint filed by the Respondent and
(ii) award cost in favour of the Petitioners and pass the order which may be deemed to be just, fit and proper in the facts and circumstances of the case in favour of the Petitioners & against the Respondent.
The Revision Petition has been filed with a delay of 123 days (215 days in the application for condonation of delay). IA/3244/2021 has been filed for condonation of delay in filing the Revision Petition. In view of the reasons mentioned in the application for condonation of delay, the application is allowed. Delay is condoned.
While the Revision Petitioners were Appellants and the Respondent was Respondent in the said FA229/2019 before the State Commission, the Petitioners were Opposite Parties (OPs) and Respondent was Complainant before the District Commission in the CC 86/2016.
Notice was issued to the Respondent(s) on 19.05.2021. Parties filed Written Arguments/Synopsis on 13.04.2023 and 29.03.2023 respectively.
Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Commission, and other case records are that the Respondent had filed a complaint before the District Forum Una, Himachal Pradesh, alleging that on 25.04.2016, the complainant/respondent sent a mobile by speed post of India Post from Post Office, Amb to his sister, residing in New Delhi. When after one week complainant tracked the item on India Post Website, it showed that the packet containing the item reached New Delhi on 27.04.2016, but item was not loaded there. Complainant filed complaint of website of India Post on 30.05.2016 but no reply was received from them. It was alleged that the cost of mobile phone was Rs.9500/- and some one had stolen the mobile from the packet. Hence, the complainant filed the complaint before the District Forum with the prayer for direction to the OPs to pay cost of mobile and also the litigation charges etc.
The Petitioners/OPs contested the case before the District Forum and filed reply also. They contended that the complaint is not maintainable. They also contended that such type of articles costly/precious gifts are mandatorily required to be sent as insured to avoid risk as per clause 172,173,176 and 184 of Post Office Guide Part-1, as the insurance covers all risks in course of transmission by post. It was also contended in their reply that the online complaint was received by the OP-2 on 03.05.2016 on Customer Care Portal of the Department and it was properly taken up with destined office stage by stage. The complaint was under active consideration by the time complainant filed the case before the District Forum. However, during the inquiry it is revealed that the said article has been lost in the transit and the complainant can be compensated to its effect as per the laid down procedure and in the light of Departmental rules and instructions issued from time to time.
Vide order dated 29.04.2019, the District Forum allowed the complaint with the direction to the OPs to pay a sum of Rs.9499/- the cost of mobile phone to the complainant along with 9% interest from the date of filing of the complaint till the amount is paid. Rs. Rs.5000/- was granted to the complainant for mental harassment and Rs.3,000/- towards litigation cost.
Aggrieved by the order passed by the District Forum, the Petitioners/OPs filed an Appeal before the State Commission. The State Commission dismissed the Appeal filed by the OPs/Petitioners herein and affirmed the order passed by the District Forum and directed the Postal Authority to comply order of District Forum within one month after receipt of certified copy of the order.
Against the order passed by the State Commission in Appeal No. 229/2010, the Petitioners/OPs have filed the Revision Petition before this Commission on the grounds that the Fora below failed to appreciate that the Speed Post was covered by the definition of postal article, as given in Section 2 (i) of India Post Office Act, 1898. The Fora below failed to appreciate that the postal article would include all articles sent by post including Speed Post and as such, the Speed post would be covered under the provisions of Section 6 of the Indian Post Office Act and the Respondent neither ever disclosed the contents of the speed post article nor ever got the same insured. The Fora below failed to appreciate that non-production of enquiry report cannot be taken against the Petitioners. The Fora below also failed to appreciate that even in the complaint, there were no specific allegations against any postal employee of any fraud or causing loss by willful default or act. Once there was nothing in the pleadings, the Foras below were not correct in proceeding against the Petitioners on the basis of their assumptions and presumptions. The Fora below also failed to appreciate that Section 2 (i) of the Indian Post Office Act, which defines Postal Article, clearly provide that “the expression ‘postal article’ includes a letter, postcard, newspaper, book pattern or sample packet, parcel and every article or thing transmissible by post.”. As such, Speed Post would be covered under the definition of postal article and the Petitioners would be entitled for the grant of immunity under Section 6 of the India Post Office Act. The Fora below did not appreciate that a three member Bench of this Commission had held in the case of Head Post Master Vs. Vijay Rattan Aggarwal (RP/15/1997 decided on 18.09.2002) that Section 6 would certainly apply, when the article is sent by SPEED POST and this Commission had held in the case of The Post Master General Vs. Ms. Suyasha Jawa (RP/2685/2013 decided on 15.05.2014) that the Postal Department would be entiled for the immunity of Section 6 of the Post Office Act, in the case of mis-delivery of the article. This judgment is based upon the judgment dated 02.12.1999, titled as The Post Master Imphal & Ors. Vs. Dr. Jamini Devi Sagolband reported as I (2000) CPJ 28 (NC), in which this Commission had held that the relationships between the sender of a postal article and the post office is governed by the Indian Post Office Act and not by the law of contract or tort and 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 and no relief can be granted to a Respondent on the mere allegation of loss or non-payment of the postal article. The complaint is also barred by Section 3 of the CP Act which has been upheld by the National Commission holding that if the remedy is barred by Section 6 of the India Post Office Act, a complaint under C.P. Act would not lie.
Heard counsels of both sides. Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.
10.1 It is contended by the Petitioners that the complaint was not maintainable and there was no cause of action. The Department of Post is exempted from liabilities for loss, mis-delivery, delay or damages of Postal articles u/s 6 of Indian Postal Act 1989 unless the same has been caused fraudulently or by wilful act of the Post Office. The speed post letter was completely dispatched and there was no lapse on the part of the Petitions. It was also submitted that the costly articles and gifts are mandatorily required to be sent through insured parcel, as per clause 172,173 and 176 of Post Office Guide Part-1. Even otherwise also, the Postal Department is not a common carrier. As per rules, total compensation for loss of Domestic Post letter is double the speed post book and same was offered to the Complainant. It is also contended that the District Forum failed to appreciate the submissions of the parties and allowed the complaint vide its order dated 29.04.2019. The State Commission failed to appreciate the true contentions of the Petitioners and dismissed the Appeal vide its order dated 22.06.2020. It is also contended that the Section 6 was pleaded before the Fora below but the same was not interpreted correctly and the orders were passed against the Petitioners, which are liable to be quashed. In the present case, there are no allegations of fraud or wilful act against any employee anywhere and as such, Section 6 was applicable. Fora below proceeded on assumption that Section 6 is not applicable on Speed Post which was wrong. It is also contended that the case was fully covered by the Five Member Bench of this Commission, vide order dated 02.12.1999 in the RP/986/1996, titled as ‘The Post Master Imphal & Ors. Vs. Dr. Jamini Devi Sagolband’ (supra). The Petitioners also relied upon the judgments in RP/1559/2018 in Supdt. Of Posts Vs. Panchachuli Women Wavers and also on order dated 03.05.2018 in RP/3789/2017, titled as Chief Post Master General Vs. Babu Lal Saini, passed by this Commission.
10.2 On the other hand the Respondent/Complainant contended that the properly packed mobile was sent through speed post of India Post from Post Office, Amb (Una, HP) on dated 25.04.2016 to the Respondent’s sister residing in New Delhi. After a week, when item still not delivered and tracking website of India post showing that bag containing the item was reached New Delhi on 27.04.2016 but item was not present in it, a complaint was filed on the website of India post on 03.05.2016. On getting no reply of the complaint from the India Post, respondent filed complaint under Section 12 of the C.P. Act, 1986 before the District Forum, Una, H.P. on 09.05.2016 against the Petitioners for compensation and cost of mobile. It was also contended by the Respondent/ complainant that the District Forum cited the tracking report of speed post article submitted by the respondent and inferenced that “postal employee in New Delhi has committed wilful act by no delivering the speed post parcel sent by the complainant/respondent. Sending of parcel through insured post is also not mandatory under ‘The Act’. In such facts and circumstances, Section 6 of the Indian Post Office does not give protection to the OPs/Petitioners. It is further contended by the Respondent that reference is made by the District Forum to the case of Post Master General Kerala Versus Kiron Rasheed 2011 (2) CPC (NC) 328 wherein the Commission observed that provisions of Section 6 of the Post Offices Act 1898 cannot be applied to modernize forms of transactions such as speed post and email etc. Reference is also made by the District Forum in its order to the case of Superintendent of Post Offices Versus Upbhokta Surakshya Parishad, 1997 (1) CPRII(NC), wherein it was observed by the National Commission that provision of Section 6 made in Indian Postal Act 1898 is totally antiquated and out of tune with the spirit of a democratic Government in a parliamentary system where the actions of the Government functionaries are subject to scrutiny and all such functionaries are accountable for any lapse or misdeed on their part in the discharge of their duty. The District Forum also made reference in its order to case of Senior Postal Master, GPO Vs. Harjinder Singh (1986-95 Consumer 1293 NC) wherein it was observed by National Commission that “Section 6 of the Indian Post Office Act does not operate to preclude claims for compensation being made against the postal department for non-delivery of articles dispatched by Speed Post because the postal department undertakes to deliver the articles within specified period of time in consideration thereof a substantial extra charge is levied. Thus the appellant was under a special obligation for quick delivery of such a letter”.
While we are in agreement with the contentions of the Petitioners on legal point about applicability of Section 6 of Indian Postal Act 1989 (relevant extract given below) and the exemption granted to the department from liabilities for loss, misdelivery, delay or damages and that under the rules the compensation for loss of article/letter is double the speed post charges, and that costly items if booked through speed post need to be insured if claims of value of goods lost in transit have to be made, we are of the view that the Department has not done enough dissemination of information/publicity for the benefit of public at large about the applicability of such legal provisions and Rules and rights of people who book such uninsured articles and liabilities of Department in cases of loss etc. It was admitted during the oral hearing by the petitioner that perhaps no such instructions are displayed at the Post Offices.
Relevant extract of Section of India Post Office Act, 1898:
“Exemption from liability for loss, misdelivery, delay or damage. – 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 by 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.”
Considering that a large number of such postal articles, running into lakhs, are sent through post offices daily, it is the duty of a government department like postal department, which is providing a totally citizen centric services to the citizens to do sufficient publicity for dissemination of provisions of relevant Rules, including on its website, through print and social media, as well as by putting such instructions on Notice boards in all the post offices of the country, in English, Hindi and local language, so that people who visit such post offices for sending articles by post, take note of such instructions and take a conscious decision whether they wish to send any costly articles uninsured. The Department need to periodically repeat such publicity/dissemination of information through various modes. No doubt ignorance of law is no excuse, but in a welfare state, it becomes the duty of a government department like postal department to do wide publicity for regular periodic dissemination of information relating to important provisions of Act/Rules/Regulations etc. which affect the life of lakhs of citizens on daily basis.
For the reasons stated hereinabove, and after giving a thoughtful consideration to the entire facts and circumstances of the case, various pleas raised by the learned Counsel for the Parties, the RP is allowed/disposed off with the following directions/reliefs: -
(i) Revision Petition is allowed, order dated 22.06.2020 of the State Commission is set aside. Order of District Forum dated 29.04.2019 is also set aside and Complaint of Respondent herein is dismissed.
(ii) However, taking a sympathetic view, not to be quoted as precedent, and considering that amount involved is small, if any amount has already been paid to Respondent herein (complainant in CC) in pursuance to orders of State Commission or District Forum, or in pursuance to Interim order of this Commission (order dated 19.05.2021), the same shall not be recovered. This is just to enable the Respondent to cover his miscellaneous costs of contesting the case before different Fora.
(iii) Petitioners/Postal Department of Government of India shall take following proactive measures for publicity and wider dissemination of information relating to relevant provisions of Act/Rules/Regulations on the issue/subject covered in this Revision Petition for the benefit of public at large.
a. Postal Department shall put such information on the Notice Board in all Post Offices in the country, in Hindi, English and local language of the State where the Post Office(s) are situated, within three months of this order.
b. Postal Department shall do regular and periodic dissemination of such information through social media and its website. Postal Department may even consider doing such dissemination through print/electronic media on regular intervals.
c. Postal Department shall issue internal instructions to its employees dealing with such work so that they suitably inform the citizens at counters about these provisions at the time of booking such articles.
d. As existence of such rule of no liabilities for uninsured costly items has the potential for some unscrupulous employees to resort to wrong doings, Postal Department shall put in place a robust mechanism to ensure that such instances of willful wrongdoing/stealing of costly uninsured articles by any employee of the department or any person with the connivance of any employee do not happen. Further, internal systems be put in place to take stern and timely action against the wrong-doers so that public has full confidence in the working of citizen centric department like Postal Department.
(iv) Copy of the order shall be sent to Secretary, Department of Posts, Government of India/Chairperson, Postal Services Board for information and implementation of directions contained in para 13 (iii) above.
(v) Parties to bear their respective costs.
The pending IAs in the case, if any, also stand disposed off.