NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

Revision Petition No. 2751 of 2008

(Against the order dated 27.04.2008 of the Punjab State Consumer Disputes Redressal Commission, Chandigarh in Appeal No. 1581 of 2003)

Ranjit Singh

S/o Shri Raj Singh

Proprietor, Guru Nanak Electrical Stores Petitioner

Opposite Amar Talkies, Bazar No.1

Ferozepur Cantonment (Cantt.)

versus

1. Secretary, Department of Posts

Government of India, New Delhi

2. Superintendent, Head Post Office

Ferozepur Cantt.

3. Manager, Department of Posts, India

Customer Care Centre, Ferozepur

Respondents

4. Superintendent, General Post Office

New Delhi

5. Branch Manager, Oriental Bank of Commerce

Ferozepur Cantt.

6. Chief Manager, Oriental Bank of Commerce

Service Branch, New Delhi

BEFORE:

HON’BLE MR. JUSTICE R. C. JAIN PRESIDING MEMBER

HON’BLE MR. ANUPAM DASGUPTA MEMBER

For the Petitioner Mr. I.J.S. Gulati Advocate with

Mr. Yogesh Kumar Gupta, Advocate

17^th September 2008

ORDER

ANUPAM DASGUPTA

The petitioner here was the complainant before the District Consumer Disputes Redressal Forum, Ferozepur, Punjab (the “District Forum”). In his complaint, the complainant alleged deficiency in service against the opposite parties (OPs), who are the respondents in this petition, in that a registered envelope sent by him from the Head Post Office, Ferozepur Cantt. was not received by the addressee, as a result of which the demand draft contained in that envelope was not paid to an unknown person/party. By its order dated 1^st October 2003, the District Forum allowed the complaint and held that while the OPs no 5 and 6 (Oriental Bank of Commerce) were not guilty of any deficiency in service, the OPs no. 1 to 4 were and directed the latter to pay to the complainant a sum of Rs.22,000/- (rupees twenty two thousand only), i.e., the amount of the demand draft, with interest on that sum at the rate of 18 per cent per annum from the date of payment of the draft till realisation of the awarded amount, alongwith costs of Rs.5,000/-.

2. The Department of Posts (wrongly referred to in the complaint as well as subsequent proceedings as the Ministry of Post and Telegraph), Government of India (through its various officers) went in appeal before the Punjab State Consumer Disputes Redressal Commission, Chandigarh (the ‘State Commission’) against the aforesaid order of the District Forum. By its order dated 27^th April 2008, the State Commission allowed the appeal and set aside the order of the District Forum. It is against this order of the State Commission that the petitioner (complainant) has come up in revision.

3. The facts of this case have been discussed in detail in the impugned order of the State Commission. What the District Forum held the Department of Posts, Government of India responsible for was deficiency of service in not delivering the registered envelope sent by the complainant on 3^rd July 2002 from Head Post Office, Ferozepur to Tarun Electricals, Delhi. The envelope, according to the complainant contained a demand draft for Rs.22,000/-, which had been issued by the Oriental Bank of Commerce, Ferozepur Cantt (the ‘OBC’), payable to one Ravi and sent by registered post from the Head Post Office, Ferozepur.

4.1. While all the facts need not be recapitulated here, it is worthwhile noting some details which do not appear to have been considered by the District Forum. We had called for the copies of the exhibits referred to in the orders of the District Forum as well as the State Commission.

4.2. The documents filed by the parties before the District Forum during adjudication of the complaint show that the said demand draft was actually paid by the OBC, Service Branch, Karol Bagh, New Delhi on presentation by Vijaya Bank, Chandani Chowk, Delhi to the account of M/s G.H.S. Finance (P) Ltd., reportedly on the basis of an endorsement by the payee of the bank draft, namely, one Ravi. This payment was effected on 11^th July 2002. It is also clear from the records produced by the OBC before the District Forum that apparently the earliest letter written by the Branch Manager, OBC, Sadar Bazar, Ferozepur Cantt. regarding the draft in question was dated 24^th August 2002. On the other hand, in the written version filed by the Branch Manager, OBC, Ferozepur Cantt., by way of affidavit dated 1^st July 2003, it was averred as under:

“That in reply to para no. 6 of the complainant it is submitted that on receipt of information from the complainant, the matter was immediately taken up with the Chief Manager OBC Service Branch, New Delhi, i.e., OP No. 6 who replied that the amount of draft has been paid to Mr. Ravi. The said information was immediately delivered to the complainant.

It may be relevant to mention here that the draft in question was got issued in the name of Mr. Ravi and no specific identity of the person to whom the draft was to be paid, was given by the complainant and as such, on presentation of the draft by Mr. Ravi, the same was encashed by the OP No. 6 and as such, the answering respondent has nothing has to do with the complaint of the complainant. However, the answering respondent is ready to cooperate with the complainant to supply the required information regarding presentation and encashment of the draft in question.” (Emphasis supplied).

4.3. From this statement, two points emerge. First, there is no mention in the affidavit / written version of the date when the complainant reported the loss of the demand draft to the said Branch of the Bank, nor is there any mention as to when the said Branch of the OBC took up the matter with the Chief Manager, Service Branch, OBC, New Delhi, to qualify for the claim of having taken up the matter immediately. Secondly, the statement that the amount of the draft had been paid on presentation of the draft by Ravi is not corroborated by the facts emerging from the letter dated 18^th August 2003, written by the Senior Manager, Service Branch, OBC, Karol Bagh, New Delhi to the Branch Manager of the OBC at Ferozepur. One of the enclosures attached to this letter shows that the demand draft in question was presented to the OBC, Service Branch, New Delhi by Vijaya Bank, Chandani Chowk Branch, Delhi and it was presented before the Vijaya Bank, Chandani Chowk, Delhi by M/s. G. H. S. Finance (P) Ltd. There was an endorsement by the payee (Ravi) of the demand draft in favour of the said M/s. G. H. S. Finance (P) Ltd. The affirmed statement of the Branch Manager, OBC, Ferozepur Cantt. is, therefore, not fully in accord with the documents produced by the same Bank in respect of the factum of payment of the demand draft. In this regard, the District Forum observed in its order as under:

“Ex. C-3 is a photocopy of draft dated 3.7.2002 for Rs. 22,000/- in the name of Ravi, issued by the Oriental Bank of Commerce, Ferozepur Cantt. and to be paid at Oriental Bank of Commerce, New Delhi. As per the written statement and affidavits of opposite party nos. 5 and 6, the draft was got encashed by one Ravi. ………………….. Now it is not clear whether Ravi who got the cheque encashed was real or not. The Bank was not supposed to exercise more vigilance as it exercised while encashing the cheque. Therefore, in our opinion, opposite party nos. 5 and 6 are not responsible for any lapse because it was their duty to pay amount of the draft to its holder in due course.”

There is no discussion in this order of the facts and discrepancies noted above. Nor has there been any attempt to require the complainant prove that it was the intended payee Ravi who caused the demand draft to be endorsed as it was nor that the demand draft was not meant to be paid as it was and, if not, who that Ravi was. It was neither for the OPs no. 1 to 4 nor, for that matter, OPs no. 5 and 6 to disprove the allegations in the complaint – it was for the complainant to prove them. The complainant, if his hands were clean, should have been able to answer satisfactorily why the draft payable to some one called Ravi was sent, in the first place, to Tarun Electricals or who that Ravi was, in relation to Tarun Electricals. To facilitate enquiry into the facts, Vijaya Bank, Chandani Chowk Branch could have been required to participate in the adjudication of the complaint. None of this was done. Be that as it may.

5. As regards the alleged deficiency in service on the part of the Department of Posts, it needs to be noted that in the legal notice dated 27^th July 2002, the Advocate for the complainant stated that after about a week the complainant had enquired with the addressee, Tarun Electricals about the receipt of the registered envelope and was told by the latter that the envelope had not reached the “correct addressee”. However, the letter dated 31^st July 2002 from the Customer Care Centre, Department of Posts – India, Ferozepur to the complainant referred to “Your letter nil”. Thus it is not clear whether the complainant actually wrote to the Head Post Officer, Ferozepur immediately after (as mentioned in the legal notice) learning about the alleged non-delivery of the registered envelope to Tarun Electricals and whether the legal notice dated 27^th July 2002 was sent after any noticeable interval from the date of the complainant’s first letter to the Head Post Office, Ferozepur about the alleged non-delivery of the registered envelope to the correct addressee. We asked ourselves what the normal course of action of a sender would be on learning about the non-receipt of a registered envelope by the addressee. In our view, the normal course would be that such a person would write immediately to the Post Office at which the registered envelope was posted. Such a person would, if vigilant and prudent, also seek written confirmation from the addressee of the envelope that the registered envelope had not reached him till such and such date and that the latter had also enquired unsuccessfully with the addressee’s post office. None of this seems to have been done.

6. Further, if the complainant learnt from the OBC, Service Branch, New Delhi that the demand draft contained in the registered envelope had actually been encashed on 11^th July 2002, once again, the normal reaction would have been to immediately write to the Ferozepur Cantt. Branch of the OBC. It is contended in the legal notice dated 27^th July 2002 that the complainant sent a fax message to the Service Branch of the OBC at New Delhi. If the complainant was vigilant enough to issue a legal notice through an Advocate to the Department of Posts and Senior Superintendent of Posts as early as on 27^th July 2002 and also a fax message to the paying branch of the OBC, it is difficult to see why he could not produce any letter written by him to the Post Office about the missing registered envelope. It is equally difficult to see why no such legal notice was ever sent to the Branch of the Bank, which actually allowed payment of the said demand draft.

7.1. Thirdly, the respondents in this petition (OPs no. 1 to 4 in the complaint) produced before the District Forum a copy of the report dated 3^rd July 2002 of the Ferozepur Head Post Office, which shows that the registered letter at sr. no. 34, addressed to Tarun Electricals, Delhi was received at 1434 hours on that date. While the petitioner produced nothing before the District Forum to establish delivery of the said registered envelope to the addressee, namely, Tarun Electricals, Delhi, it is quite clear from the subsequent facts that the demand draft contained in the registered envelope did reach Delhi. So, the case against the OPs no. 1 to 4 could at best be of misdelivery. It may also be noted that on 8^th August 2003, i.e., towards the end of the hearing of the matter before the District Forum, one Tarun Narang of Tarun Electricals, 1350, Pan Mandi, Sadar Bazar, Delhi affirmed and produced on record an affidavit stating, inter alia, as under:

“That on dated 3^rd July 2002, the complainant had sent a registered envelope no. 4397 dated 3^rd July 2002 at my above mentioned address. The said envelope was containing draft no. 5960 issued from the Oriental Bank of Commerce, Ferozepur Cantt. on 3^rd July 2002 for Rs.22,000/-. That the said registered envelope containing the said draft has not been received by me so far till today nor the said draft has been got encashed by me.”

It is difficult to understand why such a written statement could not be made by the said Tarun Narang of Tarun Electricals soon after the claimed enquiry by the complainant about receipt of the registered envelope and before 27^th July 2002, the date on which the Advocate for the complainant sent a legal notice to the respondents.

7.2. On this issue, the State Commission has observed as under:

“So far as the appellants are concerned they were only handed over a registered cover for being delivered to Tarun Electricals, Delhi and there is no evidence from Tarun Electricals, Delhi if this registered cover has not been delivered to them. The appellants were not concerned with the Bank Draft for an amount of Rs.22,000/- because this Bank Draft was nowhere handed over directly to the appellants nor the reference of this Bank Draft was disclosed by Ranjit Singh, respondent no.1 while handing over the registered letter to the appellants. Bank Draft dated 3^rd July 2002 appears to be payee’s (Ex. R- 5) account which could only be deposited in the account and which was in the name of Ravi and it was not in the name of the addressee i.e. Tarun Electricals. Therefore, the appellants are nowhere connected with the Bank Draft. There is no evidence if the registered cover is not delivered to the addressee except the version of Ranjit Singh respondent no. 1, which cannot be accepted on the face value.”

8. The position of law on the liability of the Department of Posts and its employees in respect of loss, misdelivery, etc., of registered letters is clear. This is contained in section 6 of the Indian Post Office Act, 1898, which reads as under:

“6. 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 insofar 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.”

9. For a liability to be fastened on that Department for deficiency in service in this regard, it is thus necessary to allege and establish wilful act or default on the part of the Department. Careful perusal of the complaint would show that no such allegation was made, leave alone established by the complainant. Even the legal notice so promptly sent (on 27^th July 2002) by the complainant to the Department of Posts does not allege any “wilful” negligence. As observed by the State Commission, it has been held by this Commission in the past that in the absence of allegation of wilful negligence, the Department of Posts or its employees cannot be held liable for misdelivery of registered letters in view of the provisions of section 6 of the Indian Post Office Act, 1898.

10. It is quite clear that the attempt of the petitioner/ complainant in trying to fasten the responsibility for deficiency in service on the part of the respondents is not supported by acceptable evidence nor is it in accord with the statutory provisions cited above. The State Commission was, therefore, fully justified in setting aside the order of the District Forum holding the respondents (OPs no. 1 to 4) guilty of deficiency in service. We see no reason to interfere with the well-reasoned order of the State Commission. Accordingly, this revision petition is dismissed. There shall be no order as to costs.

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[R. C. JAIN, J]

PRESIDING MEMBER

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[ANUPAM DASGUPTA]

MEMBER