The Post Master, Imphal & Others                     -- Petitioners
              Vs.
Dr. Jamini Devi Sagolband                                 -- Respondent

BEFORE :

Hon'ble Mr. Justice Suhas C.Sen, President, Dr. (Mrs.) R.Thamarajakshi, Member, Mr. S.P.Bagla, Member, Hon'ble Mr. Justice C.L.Chaudhry, Member, Hon'ble Mr. Justice J.K.Mehra, Member.

SUHAS C.SEN, J.

       This is a Revision Petition against an Order of the Consumer Disputes Redressal Commission (State Commission), Manipur, Imphal.  By this order, the State Commission disposed of two appeals (Appeal Case No.11 of 1993 and Appeal Case No.12 of 1993) arising out of two different orders passed by the District Forums.  In both the cases, compensation has been awarded to the complainant for delayed delivery of postal packets to the National Tutorial, Bombay.  The allegation of the complainant is that the postal packets contained original B.A. certificate and the examination form duly filled in along with the examination fee of Rs. 375/- in draft.  The Registration was done at Imphal Head Post Office.  Because the registered letter did not reach its destination in time, the complainant was not allowed to sit at the examination. She claimed that she has suffered mental injury, financial loss and loss of better service prospects.  Her specific case as recorded in the order of the State Commission is that "due to the mistake committed by the dealing assistant of the Imphal Head Post Office, the registered letter containing the said original B.A. certificate and other requisite documents did not reach its destination and the opposite parties, being the authorities of the postal department, were vicariously liable for the negligence; she claimed Rs. 99,000/- as compensation for the same."   The claim of the complainant was made against the Postmaster, Imphal Head Post Office, Director, Postal Services, Imphal and Director General of Posts and Telegraph Services.  In the affidavit filed on behalf of the opposite parties, the opposite party stated that registered letter No.1211 was booked by Imphal Head Post Office on 7-8-92 and that the said registered letter was properly listed, packed and despatched on 8-8-92. Therefore, there was no negligence on the part of the Imphal Post Office.  It was also pleaded that the complainant was not a consumer within the meaning of the Consumer Protection Act.  It was further pleaded that the complaint was not maintainable in view of the provisions of Section 6 of the Indian Post Office Act and Clause 81 of the Post OfficeGuide.  The State Commission held that the complainant was clearly a consumer in that she had hired the services of the post office.

           On the point of negligence it was held by the State Commission that the registered letter was listed by the dealing assistant as VPL which is a very ordinary form of despatch exposing it to a far greater risk of being lost in transit or mis-sent.  Neither the dealing assistant nor the postal clerk appeared in the witness box to explain as to why the letter in question was listed as VPL.  The State Commission held that there was clear negligence and deficiency in service on the part of the dealing assistant or the postal clerk for which the respondents were vicariously liable.

            Coming to section 6 of the Indian Post Office Act the State Commission expressed the view that provisions of the Indian Post Office Act were intended to protect those who had committed bona fide mistakes and not those who are guilty of dereliction of duty and callous indifference in performance of the function.  In this case, the dealing assistant/postal clerk had sent the registered article as VPL which is a very ordinary form of despatch exposing the article to a far greater risk of being lost in transit. This was a clear case of negligence for which the Director General as well as the Director of the Postal Services as also the Post Master must bear vicarious liability.

          Dealing with Clause 81 of Post Office Guide which lays down that any complaint for loss or damage of registered or insured article must be lodged within three months from the date of the posting of the article. The Commission expressed the view that this may provide for limitation of a period of three months for claim for compensation under Indian Post Office Act.  But this provision has no relevance for the purpose of a case under the provisions of the Consumer Protection Act which has its own period of limitation.

            There was also a factual dispute about the contents of the registered article; it was contended that the respondent has failed to establish that the registered A/D letter contained the original B.A. certificate, Rs. 375/- in draft form and the examination form. On appreciation of the affidavit filed before it, the State Commission was of the view that the factual stand taken by the postal department cannot be upheld. The State Commission set aside the award of  Rs. 15,000/- made by the District Forum on account of loss of better service prospects. The State Commission, however, upheld the direction of the District Forum upon the respondents to pay Rs. 14,000/- for mental agony and physical pain and also a further sum of  Rs. 18,645/- as compensation for the loss.

         Although a large number of points were taken by the State Commission in appeal, counsel for the Post Master, Imphal confined his arguments only to section 6 of the Indian Post Office Act which is 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 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 of default."

          The Section very clearly lays down that 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 provided by the statute 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 of default. There are some provisions in the Act where specifically Government has been made liable to pay compensation for the lost postal articles. For example, Section 33 categorically says that subject to such conditions and restrictions, Central Government shall be liable to pay compensation for insured postal article. But where there is no such specific provision in the Act for payment of compensation, Section 6 grants complete immunity to the Government  for liability for loss, misdelivery, delay or damage to the postal articles. The second part of Section 6 deals with individual liability of the Postal employees but states that 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.  In this case there is no allegation that the Post Master or the Director or the Director General was guilty of fraud or wilful act or wilful default which led to non-delivery of the postal article.  An officer of the post office may be held liable for any loss, misdelivery, delay or damage if it can be proved that he has caused such loss, misdelivery, delay or damage by some fraudulent act or wilful act or default. In other words, the person who has committed the offence can be sued for damage but no action will lie against either the Central Government or any of its officers vicariously for the wilful act or default of the dealing clerk or postal peon. The allegation in this case was that the dealing clerk had negligently sent the postal packet as VPL.  If that is the allegation, then proceedings should have been taken against the dealing assistant or the postal clerk who was held guilty of this wilful default.  But the Director General or the Director or the Post Master cannot be made liable vicariously for the wilful act or default of the dealing assistant.

          The Indian Post Office Act came into force in 1898 and this section came up for consideration in large number of various High Courts. There has not been any difficulty in understanding and construing the meaning and import of the provisions of section 6 by any of the High Courts. We shall refer to some of the High Court decisions.

            It is to be noted that the judgments of the Courts are based on two fundamental principles. One is the absolute protection afforded to the Government and also the Governments servants who had not dealt with the postal articles themselves by Section 6.  The other is the nature of postal service provided by the Government.  The postal service provided by the Government extends throughout the territory of India.  A letter sent from the remotest village in Kashmir will reach the addressee at the outer most point of Kanyakumari.  A vast network has been built by the Government to provide this service. It has been emphasised that by posting a letter or handing over a packet at the post office for transmission to the address of the addressee, the sender does not enter into any contract with the Government. The sender really avails of a service statutorily provided by the Government.  It is true that postage stamps have to be affixed but that is for augmentation of Government revenue.  It is not in the nature of a price paid for the service.

            This principle was stated by Lord Mansfield in an English case as early as in the year 1778.  The principle stated by Lord Mansfield in his judgment in Whitfield Vs. Lord Le Despencer (1778, 98 E.R. 1344) in which it was held "a case does not lie against the Postmaster General for a bank note stolen by one of the sorters out of the letter delivered to the post office". In the course of this judgment Lord Mansfield rejected the comparison sought to be made between a postman and a carrier or the master of a ship. Lord Mansfield's judgment was cited and relied upon by the Court of Appeal in the Case of Triefus & Co. Ltd. Vs. Post Office (1957) 2 All England Reports 387.  It has to be borne in mind that this judgment was given after the Old Post Office Act was repealed and replaced by a New Act called Post Office Act, 1953 in England.  The Court of Appeal pointed out that the basic principle stated by Lord Mansfield has remained unchanged under the new Act.  It was observed by Hodson L.J. that there was an underlining principle involved in these cases. The post office does not accept a postal packet for transmission by post except under and subject to the provisions of Post Office Act and the regulations made thereunder.  After a review of the case laws and the provisions of the Post Office Act 1953, it was ultimately held by Hodson L.J., "For these reasons, in my opinion, the learned judge was right. No contract was entered into between the appellants and the Post Office".

            Parker, L.J. in his concurring judgment observed, "It is, of course, clear that if A entrusts a letter to B to be carried to C, and B receives remuneration for his services, a contractual tie results between A and B ... the only question here is whether, when A entrusts to the Post Office a postal packet for transmission overseas, a contractual tie results. Clearly the Postmaster General is in quite a different position from a private individual. He is responsible to the Crown for running a public service and, incidentally, a monopoly. The money that is paid by the public is revenue."  Apart from the immunity granted by the statutes passed from time to time the Postmaster General must not be treated as a common carrier. The postal department offers a service to the people the magnitude of which has increased over time.

                These observations of the English Courts have been quoted with approval by various High Courts in India as well as the Supreme Court in the case of Union of India Vs. Mohd. Nazim, AIR 1980 SC 431, in the following words :

           "8. The post office was established in India by a statute. Postage required to avail of the postal services has been defined in Section 2(f) of the Indian Post Office Act as 'the duty chargeable for the transmission by post of postal articles'.  Under Section 4 the exclusive privilege of conveying letters is reserved to the Central Government with certain exceptions which are not significant.  S. 17 of the Act says that 'postage stamps' shall be deemed to be issued by Government for the purpose of revenue. It appears from Section 23(3) of the Act that under certain circumstances postal articles sent by post may be opened and destroyed under the authority of the Post Master General. These are only some of the provisions of the Act which seem to indicate that the post office is not a common carrier, it is not an agent of the sender of the postal article for reaching it to the addressee.  It is really a branch of the public service, providing postal services subject to the provisions of the Indian Post Office Act and the rules made thereunder. The law relating to the post office in England is not very much different from that in this country. In Triefus & Co. Ltd. Vs. Post Office (1957) 2 QB 352, the court of appeal held that the post office is a branch of revenue and the Post Master General does not enter into any contract with a person who entrusts to the post office a postal packet for transmission overseas. This decision approves the observations of Lord Mansfield in Whitfield Vs. Le Despencer (1778) 2 Cowp. 754.  In the course of his judgment, Lord Mansfield said 'The Post Master has no hire, enters into no contact, carries on no merchandize or commerce. But the post office is a branch of revenue, and a branch of police, created by Act of Parliament. As a branch of revenue, there are great receipts' but there is likewise a great surplus of benefit and advantage to the public, arising from the fund. As a branch of police it puts the whole correspondence of the kingdom (for the exceptions are very trifling) under government , and entrusts the management and direction of it to the crown, and officers appointed by the crown. There is no analogy therefore between the case of the Post Master and a common carrier".

           That apart acceptance of the contention of the complainant will lead to disastrous consequences.  Assuming that 10 lakh postal articles are posted all over India every day (the figure must be much more) and in 1 % case there is delay in delivery or loss of the postal packet, if the government has to pay compensation for 1,000 delayed packets a day and if, as in this case, compensation of Rs. 20,000 is awarded, the Government will have to pay compensation of Rs. 21 crores a day which will come to Rs. 730 crores a year.  No Government can bear the brunt of this sort of liability in rendering a valuable public service to the people. Either the postal service will have to be closed down or the charges enhanced drastically to bring home nearly another Rs. 800 crores of revenue. It may be noted that we have no correct figure of letters and postal articles sent all over India. Accordingly to a judgment of Division Bench of the Kerala High Court to which we shall presently refer it must run into billions. The Government gives much more in service than it gets in revenue. That is the reason for enacting Section 6 of the Indian Post Office Act which gives absolute protection to the Government against any claim for damages on account of loss of a postal article except in cases and to the extent to which it has been specifically provided in the Act itself. As the Supreme Court has pointed out the Post Office is not a common carrier, it is not an agent of the sender for sending of the postal articles to the addressee. It is really a branch of the public service subject to the provisions of the Indian Post Office Act and the rules made thereunder.

            We shall now examine some of the judgments delivered by the High Courts.

            Rajasthan High Court in the case of Union of India Vs. Firm Mohanlal Ramchandra, Rajasthan Law Reports (1967) 279, referring to Section 6, observed that "This section, therefore, gives a statutory protection to the Government from liability by reason of loss, misdelivery, or delay of, or damage to, any postal article in course of transmission by post, even though such liability may exist under the general law relating to carrier.  Learned counsel for the respondent has argued that the instant case does not fall under any of the categories mentioned in Section 6 in as much as neither the parcel has been lost nor has it been misdelivered, nor is there any damage to it.  His contention is that in fact the servants of the defendant fraudulently or clandestinely took part of the contents of the parcel, and to cover up this misconduct, an alteration was made on the cover of the parcel,  by substituting Rs. 1,500 for Rs. 2,500/- as the amount for which the parcel was insured.  In my opinion, this argument has no force. It is a case in which liability is sought to be cast on the Government by reason of the loss of part of the contents of the parcel.  The word 'loss' covers a case where the entire postal article is not lost but only part of its contents are lost. In any case, the word 'damage' would cover it because there can be no doubt that the postal article has been damaged."

               Madhya Pradesh High Court in the case of Union of India Vs. Sumerchand Jain (1969) M.P.L.J., 184 observed, "The post office is a branch of public service and the liability for misdelivery of a postal article can be supported only on the express provisions of the Post Office Act. Under Section 6 of the Act the Central Government has been expressly exempted from liability in case of misdelivery of a postal article, unless the Central Government has expressly undertaken such liability under other provisions of the Post Office Act."

              In the case of Union of India Vs. Ramji Lal, (1967) Allahabad 104 the Allahabad High Court referring to Section 6 of the Indian Post Office Act observed, "Its provisions can be divided into two parts. The first part deals with the liability of the Government and the Section expressly says that it shall not be liable except in so far as such liability is undertaken by the Central Government. The second part protects an officer of the post office and says that he shall not incur any liability by reason of any loss, misdelivery, delay of or damage to any postal article in course of transmission unless he has caused the same fraudulently or by the wilful act of default.  It will follow that while the Government is expressly protected from liability, an officer of the post office can be made liable provided he comes within the ambit of the rule laid down by the section."

            Similar views have been expressed by Kerala High Court in the case of T.K. Raghavan Vs. Union of India, 1988 Kerala 218 where it was held that suit for damages for delayed delivery of the letter was not maintainable because Section 6 of the Indian Post Office Act conferred complete immunity to the Government.  Kerala High Court took the view that immunity allowed by Section 6 to the Government was complete. An argument was made that this law was not fair.  It was rejected by the Division Bench of the Kerala High Court by saying that, "Judicial sentiment must stay within the limitations of judicial opinions.  In the words of Cardozo, J "The Judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence". Probably, it is for the Government to devise ways and means by which such situations are obviated.  It is a matter of policy."

              This really is the problem that the complainant has to face in this case. The Legislature, as a matter of policy, has given the Government and the Government servants complete immunity from action in damages or loss by Section 6 of the Indian Post Office Act except in specified cases. The Court cannot interfere with Government policy and the clear language of the Section to ignore the law and give a meaning to the words of the Section which they do not naturally bear.  The principle of interpretation of law is well settled that the Court has to apply a law passed by the Legislature however much it dislikes it.  It cannot torture the language of a section to bring out an unnatural meaning because it accords with the Court's perception of what the law should be. (I.R.C. Vs.  Rossminster 1980 (1) A.E.R.80).  The Division Bench of the Kerala High Court also observed, "Whether the Section aforesaid requires change is for the policy makers to decide. May be there are considerations that stand against exonerating government from tortuous liability.  May be change is not called for because Billions of letters are carried by the Post and if loss would attract actions, Government would find itself faced with a spate of actions."

              The Bombay High Court in the case of New India Assurance Co. Ltd. Vs. Air India, ILR (1983) Bombay 3, after an exhaustive review of the English cases and the decisions given by various High Courts and the Supreme Court came to the conclusion that, "Thus, the Post Office in receiving an article from a sender does not enter into a contract, nor there exists any contracting intention by handling the article delivered to it for transmission by post.  The Post Office receives the article in pursuance of the Act and the Rules made thereunder.  Neither a contract simpliciter nor a contract of bailment is brought about between the Post Office and the sender or the Post Office and the addressee. The Post Office has no hire, no merchandise or commerce, nor does it act as a common carrier in carrying an article of thing transmissible by post.  Section 6 of the Indian Post Office Act, 1898, clearly exempts the Government from liability for loss, misdelivery, delay or damage in course of transmission by post.  But certain exceptions are made whereunder the Central Government in express terms undertakes to be liable to a certain extent.  For example, under S.33, the Central Government, subject to such conditions and restrictions as the Central Government may, by rule, prescribe, is liable, to pay compensation in respect of a postal article for loss of the postal article or its contents or for any damage caused to it in course of transmission by post, but such compensation shall not exceed the amount for which the postal article has been insured.  In such a case, the Post Office insures the loss during the course of its activity of transmission of the article. Section 6 further provides immunity umbrella to the officers of the Post Office who shall also not incur any liability by reason of such loss, misdelivery, delay or damage to any postal article, unless the officer has caused such loss, misdelivery, delay or damage fraudulently or by his wilful act or default."

                A similar view was taken by the Division Bench of the Orissa High Court in the case of Devananda Vs. Union of India, AIR 1965 Orissa 118, where it was held that the liability to pay compensation by the Post Office on account of non-delivery did not arise by virtue of general law in view of the express provisions contained in Section 33 read with Section 6.

                In other words, the view adopted in all these decisions is that the relationship between the sender of a postal article and the post office is governed by the Indian Post Office Act and not by law of contract or tort. There is no liability at all for loss or non-delivery of a postal article except in so far as the specifically provided by the statute under Section 33 and Section 6 or any other regulation or rule.

                A further question is because this Commission deals with cases of deficiency of services, does the sender of a postal packet acquire any special right under this Act?  The answer has to be in the negative. There cannot be any special right against the express provision of the statutes. The question has been clearly dealt with in a number of decisions of this Commission. We shall now refer to some of them.

                Union of India Vs. Bimal Kishore Jha (R.P.No.562 of 1993) was a case of claim of a damage for delayed delivery of a postal article.  It was observed by this Commission in the judgment dated 30th March, 1994, "We are of the opinion that this case is squarely covered by the rulings of this Commission, where it has been held that no compensation can be claimed by a person who has despatched an article by post on the ground of delay in the delivery of the article in view of the categorical provision contained in Section 6 of the Indian Post Office Act, 1898 barring such claim.  The claim put forward by the complainant for compensation against the postal department for the delay in delivery was therefore not maintainable. The District Forum had erred in granting any relief to the complainant in respect of the said claim. The orders passed by the State Commission and the District Forum are set aside and the complaint petition is dismissed."

                The scope of Section 6 was once again examined by this Commission in the case of The Presidency Post Master Vs. Dr. U. Shankar Rao, II (1993) CPJ 141 (NC).  In this case an argument was made that the provision of Consumer Protection Act was not fettered by the provisions of any other Act.  It is an additional remedy and, therefore, delay in delivery of postal article or non-delivery of postal articles which causes a loss to a complainant can be redressed by this Commission.  This argument was negatived by holding "After hearing the parties, we are of the opinion that the argument of the learned counsel for the respective Revision Petitioners has force. It was rightly argued that section 3 of the Act clearly lays down that the provisions of the Act are in addition to but not in derogation of the provisions of any other law for the time being in force. This shows that the Act provides additional means of obtaining remedy by a consumer but if the remedy is barred under any other Act, then the various forums constituted under the Act cannot grant the remedy prayed for."

              The Commission also referred and explained the provisions of Section 6 of the Indian Post Office Act and held that the complaint petitions were not maintainable against the Presidency Post Master and Another in view of the Act and that section.

              In the case of Senior Postmaster, G.P.O. Pune Vs. Akhil Bhartiya Grahak Panchayat and Another, a registered parcel sent from Pune to Mau was lost in transit.  It was not delivered to the addressee.  A case of negligence in the service was brought against the postal department and the Senior Postmaster, G.P.O., Pune.  The complaint was entertained and damage was awarded by the District Forum, which was upheld by the State Commission.  This Commission, however, reversed the decision by holding that Section 6 bars the claim of the complainant. There was no allegation that the article was lost due to fraudulent or wilful act of the official against whom the action was brought unless these are alleged and proved by the complainant, the complainant is not entitled to claim any relief by way of compensation for loss, misdelivery or delay or damage to a postal article in the course of its transmission. The complaint, therefore, was held liable to be dismissed.

            Therefore, in a number cases this Commission has taken the view that no relief can be granted to a complainant on the mere allegation of loss or non-delivery of the postal article. A postal employee may be made liable provided an action was brought against him and it was proved that he was guilty of fraud or wilful act or default leading to the loss of the postal article or non-delivery thereof.  In the instant case the complaint has been made against the Postmaster and Director General of the Postal Service. There is no allegation of any fraud or wilful act or default on the part of any one of the respondents. The complaint, therefore, must fail and be dismissed.

                 Our attention was drawn to the fact that in some cases a view contrary to the decisions referred to here-in-above has been taken by this Commission. Those cases were decided on their peculiar facts and the earlier decisions of this Commission referred to here-in-above as well as the decision of the various High Courts and the Supreme Court were not cited before the Commission. The law is well settled by a long line of decisions of the English Courts, the Supreme Court of India and the High Courts as well as the National Commission itself, that Section 6 gives complete immunity to the Government and its employees except in the cases specified therein. We see no reason to depart from this well established principle.

               An argument was made that the Indian Post Office Act was passed in 1898, it has outlived its utility, has become archaic and can be disregarded. This argument has to be rejected straightaway.  Laws of the land so long as they are in force have to be respected and followed.  Article 372 of the Constitution specifically lays downs that all the laws in force in the territory of India immediately before the commencement of this Constitution shall continue in force until altered or repealed or amended by a competent Legislature.

              Indian Penal Code was passed in 1873.  Indian Contract Act was passed in 1872.  There are a large number of other Acts which were passed earlier than the Indian Post Office Act.  We cannot ignore any of these Acts or disregard the provisions of these Acts on the ground of antiquity of these Acts.

              Therefore the revision petition succeeds.  The impugned order is set aside. The complaint is dismissed.  Each party will bear its own costs.