NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSIONNEW DELHI

REVISIONPETITIONNO.2186OF2013

(Against the order dated03.01.2013in Appeal No. 1316/2012

ofthe State Commission,Haryana,Panchkula)

1.Sr.Supdt. Of Post OfficesNIT, Faridabad

2.ShriBabuRam PostmanC/o Sub Post MasterPost Office Sector 16-A,Faridabad

...... Petitioners

Versus

1.ShriMahabirPrasadR/o H. No.569, Sector-19,FaridabadAtPresent :R/o House No.37, Ward No.17PanchhamMohallaCharkhiDadriDistt.:Bhiwani,Haryana

2.The Estate OfficerHUDA, Sector – 14,Gurgaon

…... Respondents

BEFORE:

HON'BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

HON'BLE MRS. REKHA GUPTA,MEMBER

For the Petitioner:Mr.RoshanLalGoel, Advocate

Pronouncedon :4thJuly,2013

ORDER

REKHA GUPTA

Revision Petition No.2186 of 2013 has been filed under section 21 (b) of the Consumer Protection Act, 1986 (short, ‘Act’) against the impugned order/judgment dated 3.1.2013, passed by Haryana State Consumer DisputesRedressalCommission,Panchkula(short, “State Commission”) in First Appeal No.1316/2012.

Brief facts of the case are that respondent no.1/complainant had applied for allotment of a residential plot of 6Marlasin Sector-57, Gurgaon to the Estate Officer, HUDA,Gurgaon,vide application No.11938 registered as G-57, 256681. For further correspondence the address in the application was given as H.No.569, Sector-19, Faridabad of respondent no.1’s son-in-law and he had authorizedShriManojKumar to receive all letters on his behalf from postal authorities. On the draw of lots, the plot of land was not allotted to the respondent no.1.The respondent no.1 came to know that a registered letter containing refund of earnest money of Rs.51,030/- was sent by the respondent no.2 to the respondent no.1 at his given address i.e. H. No.569, Sector-19, Faridabad. However, neither the registered letter was delivered to the authorized person of the respondent no.1, by the postman of the office of the petitioner no.1, nor was it returned to the respondent no.2.

The registered letter sent by the respondent no.2 containing refund of earnest money of Rs.51,030/- was marked to oneShriBabuRam postman on 22.12.2004 who refused to deliver the same toShriManojKumar, the authorized representative of respondent no.1 and asked the respondent no.1 to collect it from the Post Office, Sector-16-A, Faridabad.It is also mention that even on production of authority letter, the registered letter in question was not delivered to authorized person of the respondent no.1 for some unknown reasons.

ShriManojKumar had addressed a complaint letter dated 28.12.2004 to respondent no.1 narrating the entire episode and even after the said complaint, the postman neither delivered the said registered letter toManojKumar, Attorney ofShriMahabirParshad, respondent no.1 nor returned the said registered letter to the respondent no.2.

The respondent no.1 also wrote a letter to respondent no.1 and the Secretary,Deptt.ofPosts,DakBhawan, New Delhi.In response to this letter, theAsstt.Director General (PG), Ministry of Communication and I.T.,Deptt. of Posts,DakBhawan,SansadMarg, New Delhi vide their letter No.F-No.13-9/05 PG dated 2.9.2005 intimated that the Dealing Assistant of Speed Post Article is responsible for the loss of the said article and the Manager, SPC has been addressed to pay the compensation to the sender and amount of compensation will be recovered from the official at fault in addition to disciplinary action.

Respondent no.1 sent an application by registered post on 1.3.2005 to the Estate Officer, HUDA, Gurgaon for refund of the earnest money subsequently reminders were sent on 27.4.2005 and 17.5.2005.The respondent no.2 i.e., Estate Officer, Gurgaon (HUDA) vide his office letter memo No. 13221 dated 18.7.2005 intimated that the refund order No.U-57-032588 for Rs.51,030/- and refundchequeNo.32627 has beenencashedon 18.1.2005 in theHongkongand Shanghai Banking Corporation Ltd., GreaterKailash-I, New Delhi.

The respondent no.1 had also got served a legal notice to the petitioner no.1 and respondent no.2 through his counsel on 9.7.2005 but yet till date of complaint the grievance of the respondent no.1 had not been redressed.

The respondent no.1 wrote a letter to Sr.Supdt.ofPolice, Sector-12, Faridabad on 25.7.2005 and requested the Police authorities to lodge FIR against the erring person and investigate the case.

The petitioners in their written statement before the District Consumer DisputesRedressalForum, Faridabad (short, ‘District Forum’) took Preliminary Objectionsthat :

Under Section 6 of “The Indian Post Office Act, 1898”, the post office is exempted from liability for loss,misdelivery, delay or damage to any postal article in course of transmission by post. The Section 6 of IPO Act, 1898 is reproduced as under:

“Exemption from liability for loss,misdelivery, delay ordamage:Section-6 exempts Post Office from any liability for lossmisdeliveryor delay of, or damage to any postal article in course of transmission by post, except as the liability may be undertaken by the Government in express terms. This section is equally applicable to the articles sent by Speed Post for which provisions have been made under Indian Post Office Rules, 1933 by inserting Rule No.66B.These rules were further amended by notification GSR 40 (E) dated 21.1.1999 which inserted the following conditions under condition no.(5) of Rule 66-B -“In case of any delay of domestic speed post article beyond the norms determined by the Department of Posts from time to time, the compensation to be provided shall be equal to composite speed post charge paid.In the event of loss of speed post articles or loss of its contents or damage to the contents compensation shall be double the amount of composite speed post charges paid or Rs.1,000/- whichever is less”.

However, the Government shall not incur any liability by reason of loss,misdeliveryor 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 be undertaken by the Central Government as hereinafterprovided ;and no officer of the Post Office shall incur any liability by reason of any such loss,mis-delivery, delay or damage, unless he has caused the same fraudulently or by his willful act or default.

The respondent no.2 had not sent a registered letter but Speed Post article no.EE-907051664IN dated 21.12.2004 booked from Gurgaon and addressed toShriMahabirPrasad R/o H. No.569, Sector-19, Faridabad at present R/o H. No.37, Ward No.17,PanchhamMohalla,CharkhiDadri,Bhiwani. The same was received for delivery on 22.12.2004 at Sector-16A, PO and was entrusted to postman,ShriBabuRam for delivery on 22.12.2004 & 23.12.2004.ShriBabuRam postman had doubts whetherShriMahabirPrasad lived at the given address asShriMahabirPrasad did not meet him at the given address.Therefore, on 22.12.2004, the said postman did not deliver the article toShriManojKumar (other than the addressee) and returned it as undelivered to the concerned P.A. at Sector-16A, P.O. Faridabad.

ShriManojKumar visited the Sector-16-A, P.O. Faridabad on 23.12.2004 for taking delivery of the SPP article but he had no authority letter ofShriMahabirPrasad, therefore, the SPP article was not delivered toShriManojKumar on 23.12.2004,ShriBabuRam postman went to the said address for delivery butShriManojKumar failed to show the authority letter of the addressee as well as produce any witness.The speed post article was not entrusted by Sector-16A, P.O.,FaridabadP.A. to the postman for delivery on 24.12.2005 and thereafter as the same was misplaced from the custody of P.A. On receipt of complaint, the said case was enquired into through inspecting officer concerned.The speed post article was lost in custody of the Dealing Assistant on 24.12.2004.The case was sent to SSPOs Gurgaon to pay the compensation to the sender.Letters were written to SSPOs Gurgaon on 17.3.2005, 15.4.2005 and 17.6.2005 vide which they were requested to settle the case by sanctioning the admissible claim to the sender of the article.SSPOs Gurgaon has also written to Administrator, HUDA,Gurgaonfor completion of the claim application so that claim may be sanctioned.

On receipt of legal notice, the matter was examined and as per the finding SSPOs, Gurgaon was addressed to pay the compensation amount to the sender of the article and intimate the amount of compensation to be recovered from official at fault.In addition, disciplinary action was taken against the official at fault vide SSPOs Faridabad Memo No.CR/DOPG/SP/ Sector-16A dated 30.9.2005/1.10.2005.

District Forum vide their order dated 30.7.2012 came to the conclusionthat;

“The argument of the counsel that the onus was on the complainant to show as to who got thechequeencashedfrom HSBC Bank is also untenable because where the speed post article containing thechequewas in custody of dealing assistant of speed post article, the onus was of the official of respondent no.1 to show as to how thatchequewas misplaced and how it reached the person who got thechequeencashed.Since the complainant or his son-in-lawManojKumar never got possession of speed post article, how the onus can be shifted upon them to show as to how thechequewasencashedand who got itencashedfrom HSBC Bank.

Therefore, respondent remains liable for non-delivery of speed post article to the complainant and it is the result of fraud oratleastdefault of the dealing assistant of speed post article because of which it reached the wrong hands who got itencashedfrom HSBC Bank.

Respondent no.1 is, therefore, directed to pay thechequeamount of Rs.51,030/- (Rs. Fifty one thousand thirty only) to the complainant with interest @ 9% p.a. from the date of complaint i.e. 8.12.2006, till the date of actual payment and also to pay him Rs.5,000/- towards litigation expenses and mental harassment.A copy of this order be sent to the parties concerned free of costs.Filebeconsigned to the record room.”

Aggrieved by the order of the District Forum, petitioners filed an appeal before the State Commission. Vide their order dated 3.1.2013, State Commission observedthat ;

“In support of his arguments, learned counsel for the appellants-opposite parties referred to Section 6 read with Rule 66-B of the Post Office Act, 1898 which is reproduced as under :-

The Govt. shall not incur any liability by reasons of loss,misdeliveryor delay of or damage to except in so far as such liability may in express terms the undertaken by the Central Govt. as hereinafterprovided ;and no officer of the Post Office shall incur any liability by reasons of any such loss,misdelivery, delay or damage, unless he has caused the same fraudulently or by his willful act or default.”

We do not find force in the contention raised by the learned counsel for the appellants-opposite parties because from the act and conduct of the opposite parties it is fully established that they were deficient and negligent in non-delivering of the postal article to the complainant. If nobody was available to receive the postal article the opposite parties were bound to send the same to its sender but they failed to perform their duty.In our view the act of the appellants-opposite parties for not delivering the speed post article at its proper destination, is willful act or default on the part of the officials of the appellants-opposite parties. It has to be kept in mind that in view of Section 106 of the Indian Evidence Act, 1872 the burden of proving deliberation about the delivery of the postal article was upon the opposite parties because after handing over the speed post envelope to the opposite party no.1 by the opposite party no.2, the opposite parties are the custodian of the same and by conducting an enquiry about the loss/missing of the postal article, the opposite parties could have submit their explanation but they failed to do so.

It is evident on record that the appellants-opposite parties are deficient for the loss of speed post envelope which was containingchequeof Rs.51,030/-.Merely by stating that the liability of the opposite parties is limited to pay compensation as admissible under the rules for loss of article or Rs.1,000/- whichever is less, is not genuine excuse as the opposite parties have tried to absolve themselves from their liability by taking shelter of Section 6 of the Indian Post Office Act, 1989 and the provisions of the Indian Post Office Rules 1933 and Rule 66B of the Post Office Act and as such the deficiency of service of the opposite parties in the instant case is not to be over sighted.

As a sequel to our aforesaid discussion, the instant case falls within the mischief of willful act or default on the part of the officials of appellants-opposite parties and as such the impugned order passed by the District Consumer Forum does require any interference.

Hence, this appeal is dismissed being devoid of any merit.”

Hence the revision petition.

Revision petition has been filed with delay of 16 days.For the reasons mentioned in the application forcondonationof delay, the delay is condoned.

We have heard the learned counsel for the petitioner and gone through the record carefully.

The grounds as given in the revision petition arethat ;

On the face of the record, it is proved thatchequein dispute sent by the respondent no.2 to respondent no.1 through Speed Post/Registered Post has beenencashedby someMahabirPrasad R/o Gurgaon from HSBC Bank and a confirmation from the said Bank has been obtained by the petitioner attached with the present petition but surprisingly, respondent no.1 while filing the complaint before the District Forum did not array the HSBC Bank or a man known asMahabirPrasad R/o Gurgaon in place of respondent no.1, in the absence of the array of HSBC Bank and the same personMahabirPrasad R/o Gurgaon, the real controversy between the parties to the litigation could not have ben adjudicated upon and this important fact and plea has been ignored by the Courts below which is very much essential for imparting the justice to the parties.

In view of the aforesaid submissions, the complaint of the complainant/respondent no.1 was not maintainable and the District Forum ought to have directed the respondent no.1 to array the HSBC Bank and another same personMahabirPrasad R/o Gurgaon as respondent, neither the respondent no.1 nor the District Forum tried to do so, which is legally fatal itself.

One important fact is established that the amount of thechequein question has not been fraudulently or otherwise, used by the official of the petitioner no.1 or by the petitioner no.2, whereas, there are the possibilities that thechequein question may have beenencashedby the person of the same name respondent no.1 in collusion with the staff of the said Bank.

Not only the above, before filing the complaint before the District Forum, it was also required for the respondent no.1 to get the verification from the respondent no.2, i.e., Haryana Urban Development Authority (HUDA) whether the amount in question has been gotencashedof thechequein question or not, this aspect was also not adhered to which clearly shows that gross negligence and non-adherence to the possible and expected measures by the respondent no.1, had the respondent no.1 taken this precaution and had done this exercise to this effect, then there were the firm possibility that the Bank referred to above and the person in the name of the respondent no.1 would have returned the amount in question to the respondent no.1 on being done so by the respondent no.1.Thus, both the impugned orders of Courts below are liable to be set aside.

The District Forum correctly came to the following conclusion that there is no dispute that a speed post article No.EE-907051664IN dated 22.12.2004 addressed toMahabirPrasad, respondent no.1 was entrusted to the petitioner no.2,BabuRam Postman (respondent no.3 before the District Forum) for delivery.But as the addressee did not live at the aforesaid address and no authority letter from the addressee was produced for taking delivery,BabuRam, petitioner no.2 returned that letter to the dealing Assistant of Speed Post Article.It is clear from the letter dated 2.9.2005 written to the respondent no.1’s son-in-lawManojKumar by Asst. Director General, Post Offices.It was further mentioned in the letter that the dealing Assistant of Speed Post Article is responsible for the loss of the said articles and the Manager, SPC has been addressed to pay the compensation to the sender and recover the amount of compensation from the official at fault in addition to disciplinary action. So, it is clear from the letter of an officer of the Dept. of Posts of Government of India that the speed post article containing thechequeof Rs.51,030/- infavourof the respondent no.1 sent by respondent no.2 was not delivered to respondent no.1 or his authorized representativeManojKumar but was misplaced by the dealing Asst. of Speed Post Centre or was gotencashedby him from HSBC Bank, GreaterKailash–I, New Delhi.Petitioner no.1 is, therefore, responsible for the loss caused to the respondent no.1 but there is no liability of petitioner no.2BabuRam because he had admittedly returned the speed post article to the dealing Assistant of Speed Post Article on the evening of 23rdDecember, 2005.

When respondent no.2 had already issued thechequeinfavourof the respondent no.1 and that already standsencashedon 18.1.2005 in HSBC Bank, New Delhi, either due to the fault or as a result a conspiracy of official of petitioner no.1, respondent no.2 is also not responsible for payment of any amount to the respondent no.1.

The petitioner at this stage based on the advice ofShriNamitKumar, Advocate dated 5.2.2013, with the view to prove that the person who has got thechequeencashedis the complainant, have obtained a statement dated 31.1.2005 from HSBC Bank, JMD, Gurgaon which indicates that a deposit of Rs.51,030/- videchequeno.032627 was made in the account ofMahabirPrasad, H.No.16,Galino.4,ArjunNagar, Gurgaon.With this statement they have sought to prove that thechequein question had beenencashedbyShriMahabirPrasad, respondent no.1 himself.To explain the same, they had pleaded before the District Forum that the article from the Post Office with the conspiracy of the official of respondent no.1 which in this case being theSr.Superintendentof Post Offices, Faridabad had got thechequeencashedfrom HSBC Bank.

It is noted that this plea was not raised in their reply before the District Forum.On the contrary, they had admitted in their reply that the SPP article had not been delivered and had been misplaced from the custody of PA.On receipt of complaint, the said case was enquired through inspecting officer concerned as the speed post article was lost in custody of the Dealing Assistant. It is indeed strange that after that they are taking a contrary stand that SPP article has been delivered toShriMahabirPrasad or as per their case “actually received the article from the post office with conspiracy of the officials of respondent no.1 and had gotencashedthecheque” without giving any evidence to support this stand.

The Bank statement dated 31.1.2005 was available in December, 2006, when the complaint was instituted with the District Forum and could have been introduced in their reply to the District Forum.It was neither introduced before the District Forum nor the State Commission.It has been relied upon for the revision petition without even making an application for filing of additional documents. As such we are of the opinion that this document cannot be introduced in this manner to adduce the main ground for their revision petition.Further, there is no evidence that the statement pertains to the account of respondent no.1 as the address ofShriMahabirPrasad given in the Bank statement dated 31.1.2005 is not the same as that given in the complaint dated 8.12.2006.In the complaint,ShriMahabirPrasad has been shown as at present - resident of House No.37, Ward No.17,PachhamMohalla,CharkhiDadri,Bhiwaniand also his corresponding address has been shown House No.569, Sector-19, Faridabad and not the address given in the Bank statement which is H.No.16,Galino.4,ArjunNagar, Gurgaon.