POST OFFICE, HISAR
Through Superintendent of Post Office, Department of Post, Postal Division,
Hisar.  Haryana                                                ...........Petitioner(s)
                                Versus    
DILWAN SINGH
S/o. Sh. Ramanand,
Street No. 2, Ward No. 6, Bharat Nagar,
Hisar.  Haryana                                                ...........Respondent(s)


BEFORE:    
     HON'BLE MR. PREM NARAIN, PRESIDING MEMBER

Dated : 19 Sep 2018

This revision petition has been filed by the petitioner Post Office Hissar against the order dated 22.08.2017 of the State Consumer Disputes Redressal Commission, Haryana, (in short ‘the State Commission’) passed in Appeal No.1162/2016 & 180 of 2017.

2.      Brief facts of the case are that respondent/complainant applied for the post of Chauffer in High Court of Delhi.  On 20.09.2012 Registrar General of High Court  sent a letter asking him to submit the attested copy of experience certificate within 15 days but the complainant got the letter on 4.10.2012 allegedly due to the fault of opposite party/petitioner (post office).  Another letter dated 26.11.2012 was sent to him to appear for the driving test on11.12.2012, but the same was received by him on 14.12.2012. The respondent/complainant filed consumer complaint No.180/2014 before the District Forum. The complaint was resisted by the opposite party on the ground that opposite party was not liable to pay any compensation in view of Section 6 of the Indian Post Office Act, 1898.  The District Forum vide order dated 31.10.2016 allowed the complaint in favour of the complainant and directed opposite party to pay Rs.30,000/- as compensation.  Both parties preferred appeals before the State Commission and both the appeals were dismissed by the State Commission vide order dated 22.8.2017.

3.      Hence the present revision petition.

4.      Heard the learned counsel for the petitioner at the admission stage.  Learned counsel for the petitioner stated that there is a delay in filing the revision petition and the same may be condoned as the delay is not intentional and the delay has been caused in obtaining higher orders.  On merits, learned counsel contended that Section 6 of the Indian Post Office Act, 1898 provides immunity to the Government of India and officers of the postal department from any liability for any delay in delivery of postal articles.  The Section 6 of the Indian Post Office Act, 1898 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, 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.”

5.      It was further pointed out by the learned counsel that Rule 66 (B) of the Indian Post Office Rules, 1933 provides that in case of delay in delivery of the Speed Post, the amount paid by the complainant as Speed Post charges shall be refunded and in case of loss of the postal articles double of the Speed Post charges or Rs.1,000/-, whichever is less will be refunded. Thus, when the rule of refund is very clear, consumer forum cannot award more than the compensation allowed in the rules of Government of India.  Both the fora below have relied upon the affidavit given by Mr. Tara Chand Sharma, Superintendent of Post Offices, Hissar Division and on the basis of this affidavit, deficiency on the part of the petitioner has been proved as admitted.  The State Commission has relied upon the following portion of the affidavit:-
“4.  That the contents of para No.4 are admitted to the extent that a speed post letter No.754095062IN was received on 03.12.2012 through Rohtak Speed Post Sorting Hub and was delivered on 14.12.2012.  Rests of the contents of para are denied for want of knowledge.”

6.      Learned counsel for the petitioner mentioned that the affidavit of Mr.Tara Chand Sharma, Superintendent of Post Offices is only a statement of the factual position.  However, the fact remains that the Section 6 of the Indian Post Office Act, 1898 will be applicable in the present case and no liability can be fastened to the opposite party.  It was prayed that the orders of the fora below may be set aside and the revision petition may be allowed.

7.    Learned counsel for the petitioner further pointed out that this Commission in the matter of Manager, Speed Post, GPO & Ors. Vs. Bhanwar Lal Gora, RP No.711 of 2017, decided on 28.08.2017 (NC) has accepted objection of Section 6 of the Indian Post Office Act, 1898 and according to Rule 66 (B) of the Indian Post Office Rules, 1933 allowed the refund of Speed Post charges only to the complainant.

8.      Learned counsel for the petitioner further stated that complainant is not a consumer vis-à-vis the petitioner/opposite party as the Speed Post was neither booked by the complainant nor he has paid any amount towards the Speed Post charges.  In fact, the Speed Post was paid for by the Registrar of the High Court and therefore, as per the definition of Consumer under Section 2(1)(d) of the Consumer Protection Act, 1986, the complainant is not a consumer.  Both the fora below have not considered this point.  As this is a legal point, it can be raised at any stage.  It was requested that this Commission may consider this point.

9.      Learned counsel for the petitioner further argued that the post office and the postal services are not covered under the definition of services mentioned under Section 2(o) of the Consumer Protection Act, 1986 and therefore, the fora were not authorised to consider the complaint filed by the complainant against the postal services.

10.   I have given a thoughtful consideration to the arguments advanced by the learned counsel for the petitioner and have examined the material on record.  Coming to the first question of delay in filing the revision petition, the Registry has reported delay of 39 days, however in the application for condonation of delay, no specific days are mentioned.  However, in the interest of justice, the delay is condoned on the grounds mentioned in the application for condonation of delay.

11.    There is a concurrent finding in respect of the fact that the concerned Speed Post was issued on 03.12.2012 and was received on 14.12.2012 and the same is admitted by the department.  The normal delivery time is 3-4 days only and thus clearly the petitioner department was deficient in delivery of the Speed Post as per the norms of the department.  The Indian Post Office Act is of 1898 and lot of water has flown since then.  The modes of communication have changed from post card, and envelopes to recorded delivery, registered post, Speed Post, E-mails and other digital modes.  Similarly, more and more laws are being enacted to infuse more element of accountability in the provision of public services.  The employees can no longer take shelter under an Act, which was enacted in1898.  As this Act was protecting the department and departmental employees, so no efforts were made to amend Section 6 of the Indian Post Office Act, 1898 by the machinery of the department.  In the citizen charters, various government departments and agencies have placed time lines for completing their actions on various citizen centric issues. Even the postal department has fixed 3-4 days as delivery time for the Speed Post articles.  Earlier, when the Act was passed, there might be no commitment on the part of the postal department to deliver as per certain commitment within a particular time, however, when the Speed Post scheme was introduced, there was a time limit imposed by the department itself upon its employees for delivery of the Speed Post articles.  There was no reference point to measure the delay under Section 6 of the Indian Post Office Act, 1898 earlier, but now under the Speed Post scheme, the delay can be measured as against norms.  Thus, the situation has changed drastically from 1898 and there is a dire need to amend Section 6 of the Indian Post Office Act, 1898 as the concept of accountability has also undergone a sea change in management of public sector services.  Even the Government of India and various State Governments have passed the law relating to mandatory provision of time lines in respect of providing different services to the consumer/common man.  In this scenario, Section 6 of the Indian Post Office Act, 1898 has lost its relevance and credibility in the present times.  Strong case is made out for amending the Section 6 of the Indian Post Office Act, 1898 in the light of the advancements made in the field of communications and in the field of accountability in the public system.

12.    So far as the present case is concerned, the District Forum has given a finding that the present case is not covered under Section 6 of the Indian Post  Offices Act, 1898 as the specific act of omission has been found against the concerned employee.  In this regard, District Forum has observed the following:-

“Sh. Tara Chand Sharma, Superintendent of Post office Hissar Division, Hisar has clearly admitted the delivery of this letter on 14.12.2012 apart from proved from a series of documentary evidence.  It is further well established on file that the post office also conducted inquiry against the erring officer/official which is very much clear from the memo dated 21.05.2013.  The respondent post office cannot take shelter of Section 6 of the post office Act because in the present case the delay of speed post was not occurred due to loss mis-delivery delay or damage to any postal article in course of transmission by post; rather in the present case from the evidence adduced it is abundantly proved on record that delay of article in question occurred due to the willful act of default on the part of the official of the respondent for which an inquiry was initiated against them and some punishment was awarded to them.”

13.   The District Forum has clearly given a finding that there was a departmental inquiry against the official of the petitioner/opposite party and some action was also taken.  However, the petitioner in the memo of appeal filed before the State Commission has not given any denial of this departmental inquiry or action taken against the employee. Similarly, in the revision petition filed by the petitioner department before this Commission, the petitioner has not made any averment in the revision petition about inquiry done by the department and the action taken.  When no denial has come from petitioner department in respect of the observation of the District Forum in respect of departmental inquiry and the action taken against the employee, the same has to be taken at its face value as observed by the District Forum.  If a departmental inquiry was conducted by the department and some action has been taken against some employee, the immunity provided under Section 6 of the Indian Post Office Act, 1898 cannot be invoked as provided in the Section itself.

14.  Coming to the question of consumer, it is clearly seen that the complainant has not paid Speed Post charges nor has he booked the Speed Post.  Clearly, the Speed Post was booked and paid for by the Registrar of the High Court.    Aggrieved person is the complainant, who is the recipient of the Speed Post and for whom the Speed Post was sent.  Section 2(1)(d)(ii) of the Consumer Protection Act, 1986 reads as under:-

 “2(1) (d)
“Consumer means any person who-
(i) [hires or avails ] of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose] [Explanation- For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self-employment]”

15.    From the above definition, it is clear that a person who is beneficiary of services would also be a consumer and may file a complaint provided there is approval from the main person availing the services. As Speed Post service was availed of by the Registrar of High Court for sending the postal article to the complainant, the approval is obvious.  Therefore, the complainant was a consumer in the present case.

16.    So far as the postal services are concerned, these services are also covered under the definition of services under Section 2(o) of the Consumer Protection Act, as a bare reading of Section 2(o) will clarify which reads as under:-

“ “service” means service of any description which is made available to potential [users and includes, but not limited to, the provision of] facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, [housing construction] entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;"

17.    From the above provision, it is very clear that the list of services in the Section is only illustrative and not exhaustive because the Section itself says that services of any description which are made available to potential users are covered and are not limited to the list given in the section.

18.    So far as the question of compensation for delay in delivery of the Speed Post is concerned, once the complainant has been found to be a consumer and his eligibility to avail the relief under Consumer Protection Act is established, the provision of Consumer Protection Act, 1986 shall be fully applicable in the present case.  Section 14 (d) of Consumer Protection Act, 1986 reads as under:-

“14. Finding of the District Forum-
(d)   to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party:”

19.    From the above provision, it is clear that the District Forum is competent to award compensation keeping in view loss and injury sustained by the complainant due to negligence of opposite party.  This Commission in Sr. Supdt. Of Post Offices Nit, Faridabad & Anr. Vs. Mahabir Prasad & Anr., RP No.2186 of 2013, decided on 04.7.2013, has held the following:-

“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 containing cheque of 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.
In view of the above facts, no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under Section 21 (b) of Act. Since, two Fora below have given detailed and reasoned orders which does not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity. Therefore, present petition is hereby, dismissed with cost of Rs.10,000/- (Rupees Ten Thousand only).”

20.    Both the fora below have given concurrent finding and have allowed the compensation of Rs.30,000/- for loss and injury to the complainant due to negligence of the employee of the petitioner.  In such circumstances and otherwise also, I do not find any reason to interfere with the orders of the fora below in respect of the compensation.

21.    Based on the above discussion, I do not find any merit in the present revision petition and the same is dismissed at the admission stage.

22.    Copy of this order may also be sent to the Secretary, Department of Posts & Chairperson, Postal Services Board, Room No.103, Dak Bhawan, Parliament Street New Delhi-110001 for considering the amendment to Section 6 of the Indian Post Office Act, 1898 in the light of the observations made by this Commission in the body of the judgment.  Copy of this order may also be sent to Secretary Department of Consumer Affairs, Room No.49, Krishi Bhawan, New Delhi.  This Commission does not seek any compliance in respect of suggestion given by this Commission for amendment in Section 6 of the Indian Post Office Act, 1898 and this judgment and order is being communicated only for necessary action as deemed fit.