At, National Consumer Disputes Redressal Commission NCDRC
By, THE HONOURABLE MRS. M. SHREESHA
By, PRESIDING MEMBER
For the Petitioner: B.K. Berera, Advocate. For the Respondent: ------
Aggrieved by the order in Appeal No. 2475 of 2014 dated 05.07.2017 passed by the Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow (in short “the State Commission”) Union of India preferred this Revision Petition under Section 21 (b) of the Consumer Protection Act (in short “the Act”). By the impugned order the State Commission has dismissed both the Appeals preferred by Union of India and the Complainant, confirming the order of the District Consumer Disputes Redressal Forum Gorakhpur (in short “the District Forum”) which has awarded a reasonable compensation of Rs.52,100/- with a default stipulation of 6% simple interest, if not paid within one month from the date of order.
2. The facts material to the case are that the Complainant, a contestant of the Lok Sabha Election in the year 2009, from Lohardaga constituency, sent through Registered Post dated 23.06.2009, paying Rs.52, the details of expenditure incurred in the election process to Shri Raul Sharma, Deputy Commissioner/ District Election Officer. It was averred that even as on the date of filing of the Complaint i.e. 23.09.2013 the Registered Post was not received by the addressee. It was pleaded that the Complainant was debared from contesting the Election from any constituency for a period of 3 years as the Election Commission of India did not receive the Election Expenditure Statement and the same was communicated to him by the Election Commission vide letter dated 09.04.2012. It was alleged that it was only due to negligence of the Postal Department that the Complainant has suffered irreparable loss. It was averred that it was only after the receipt of the letter from the Election Commission of India that the Complainant came to know that his Registered Post was not received by the Deputy Election Commissioner. The Complainant made all efforts to know the whereabouts of the parcel but did not receive any reply. He also sent a registered letter on 08.01.2013 demanding proof of delivery, for which he did not receive any response. On 22.03.2013 a legal notice was issued and an enquiry was also made on 10.04.2013, for which the Opposite Party replied stating that the record of the said proof of delivery was not available as the matter was time barred. Hence
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the Complaint seeking direction to the Opposite Party to pay a compensation of Rs.17,00,000/- for loss of social reputation and mental agony suffered, together with other reliefs.3. On behalf of the Opposite Party Vakalatnama dated 21.04.2014 was filed together with an Application to accept the Written Statement. The Application was allowed and the next date was fixed on 16.05.2014, on which date none appeared on behalf of the Opposite Party, the District Forum gave one more opportunity with the specific direction that if the Opposite Party does not appear and does not file its Written Statement on 04.07.2014, the matter shall be proceeded ex-parte. None appeared on 04.07.2017 and the Opposite Party was proceeded ex-parte on 05.08.2014. The Complainant’s arguments were heard on 10.09.2014 on which date also none appeared on behalf of the Opposite Party and the matter was listed on 24.09.2014 for pronouncement of order. While so on 16.09.2014, an Application was filed by the Opposite Party seeking a direction to give an opportunity to file the Written Statement. It is pertinent to note that in the said Application there was no specific prayer to set aside the ex-parte order but only to give in opportunity to file the Written Statement. Not only does the District forum not have the power to Review, without setting aside the ex-parte order the question of giving an opportunity to the Department to file their Written Version does not arise. Keeping in view the facts and circumstances the District Forum has rightly disallowed the Application.4. In an Appeal preferred by the Union of India for setting aside the order of the District Forum and also by the Complainant seeking enhancement, the State Commission dismissed both the Appeals confirming the finding of deficiency of service on the part of the Postal Department. The State Commission has observed as follows:“It is vehemently argued by the ld. Counsel for the appellant that when this fact itself was not conclusively proved that the parcel in question was not delivered at all then there was no question of proving the deficiency in service on the part of the appellant but we find that there is no substance in the arguments advanced by the ld. Counsel for the appellant as in the order dated09.04.2012 which was communicated alongwith aforesaid letter dated 09.05.2012, it transpires that with regard to the reasons for debarring the candidate at serial number 14 against the name of the complainant Arjun Bhagat, there is the mention of the fact of not being able to submit accounts for the expenditure incurred in the election. So, it clearly shows that the account was not at all submitted by the complainant, hence, it is not the case that information submitted by the complainant was not as per norms. So, it is clear that in fact information submitted by the Complainant through parcel did not reach its destination and therefore, in the absence of the information required the complainant was debarred from contesting the election. The only conclusion, once the complainant is able to prove through receipts that the parcel was sent through the postal Department, is that the appellant did not deliver the parcel to the addressee and therefore, it appears to be a case of deficiency in service on the part of the appellant but here another argument advanced by the ld. Counsel for the appellant is that under section 6 of the Indian Post Offices Act, 1898, it is provided that no officer of the Post Office shall incur any liability by any reason of any such loss, mis-delivery, delay or damage, unless he has caused the same fraudulently or by his wilful act or default and since there is no evidence of any official of acting fraudulently or by his wilful act of default hence, no order for awarding compensation could be passed and in this regard ld. Counsel for the appellant has cited decision of the Hon’ble NCDRC in Head Post Master, Post Office Railway Road, Kurukshetra, Haryana & Ors. vs. Vijay Rattan Aggarwal etc. R.P. No. 15 of 1997 and Post Master, Imphal and others vs. Dr. Jamini Devi Sagolband, (2000) CPJ 28 (NC), Department of Post & Ors. vs. Gajanand Sharma, it was held by the Hon’ble NCDRC that in the facts of the case where there was attempt to hide the real reason in not delivering the letter, the conduct of postal Department leads to irresistible conclusion that there was wilful default on the part of its official concerned. Hence the case of the complainant fell within the ambit of exception carved out under Section 6 of the Indian Post Office Act and in the instant case, we find that the conduct of the official of the postal Department is such as to conclude that there was wilful act or default on the of the official concerned in not delivering the article to the addressee i.e. the reason why they first challenged the conclusive proof of the ono-delivery and once that was done by the complainant then taking shelter under the rules instead of categorical stating the fact that the letter was in fact delivered. In fact, the appellant has gone to the extent of finding fault with the complainant in not making the addressee a party to the case when there was no need at all of the same in view of the categorically mentioning of non-submission of the information sent through parcel. When a parcel is sent and is not delivered then it is normally retuned to the addressee but that has not been done which also shows that there was default on the part of the official in not delivering the article and also not returning it to the sender in case the article was no delivered. The fact is that citizens hold in high esteem the post offices run by the Central Government and hence, the letter and parcels are preferably sent by the citizens of the country though post offices with the belief that there will not be any obstacle in reaching the articles to its destination but this fact has been utterly belied by the postal Department as the hapless consumer has been debarred form contesting elections in absence of the required information by the election Commission for none of his default. Therefore, as per the aforesaid cited case (Gajanand Sharma), it is clear that this case falls within the exception of wilful act or default of the officials under section 6 of the Indian Post Office Act and therefore, the appellant/ OP is guilty of negligence and deficiency in service. Therefore, we find that the ld. Forum below has correctly found the appellant guilty of deficiency in service, therefore in that regard, we do not find any cause to interfere in the conclusion drawn by the ld. forum. Though the loss that has been occasioned to the complainant cannot be compensated in exact terms yet ld. Forum has awarded compensation in addition to the liability under the rules which under the facts and circumstances of the case appears to be justified. So the appeal no. 2475 of 2014 is devoid of merit and liable to be dismissed.So far as the appeal no. 2281 of 2014 is concerned, we find that the amount awarded by the Forum below is found to be justified and there is no cause to enhance that amount of compensation therefore, this appeal is also liable to be dismissed.”5. At the outset, it is observed that this Revision Petition has been filed with a delay of 56 days, in the Application IA/19154/2017, seeking condonation of delay not a single date is mentioned regarding the reasons for filing this Revision Petition with a delay of 56 days. In fact it is relevant to note that the Postal Department has filed an application in a most casual manner seeking condonation of delay. Hon’ble Apex Court in a catena of judgements has laid down that reasons given for condoning any delay should be cogent and that no delay can be condoned in a casual manner.6. The Hon’ble Apex Court in Postmaster General vs. Living Media India Ltd., (2012)3 SCC 563 has clearly laid down as follows:“28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction of lack of bon fides, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The Claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly blinds everybody including the Government.29. In our view, it is right to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red tape in the process. The government Departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the government Departments. The law shelters everyone under the same light and should not be swirled for the benefit of a view.”(emphasis supplied)7. The Hon'ble Apex Court in the case of Anshul Aggarwal Vs. New Okhla Industrial Development Authority reported in IV (2011) CPJ 63 (SC) has been pleased to observe as follows:“It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the consumer Foras.”8. In both the aforenoted judgments the Hon’ble Apex Court has clearly laid down that unless substantial reasons are given delay cannot be condoned as a matter of fact.9. In the instant case, to substantiate the casualness of the Department in seeking condonation of delay the grounds given in the said Application are reproduced as hereunder:* “That the Petitioners free copy was issued dt 06-07-2017. The Petitioner could not file the Appeal within 90 days due to the reasons explained in the Application and the various channels involved in the decision making process.* That the Competent authority has now taken the decision to file the R.P. through the Govt. Counsel as the important question of law is involved.* That the Petitioners have a prima facie case on merit and are likely to succeed on merit.* That the delay in filing the Revision Petition is beyond the control of the revisionists as explained in the Revision Petition which is neither intentional nor deliberate.* That it is in the interest of justice the present revision petition may kindly be admitted in after condoning the delay of 54 days in filing of the same.* That irreparable loss and injury would be caused to the Petitioners, if the present revision petition is not admitted as the issue involved herein is a matter of public importance as the petitioner is a non-profit organization. “10. Having regard to the fact that there is not a single date mentioned in the Application for condonation of delay and no reasonable and acceptable explanation has been given, and also keeping in view both the aforenoted judgements I do not see it a fit case to accept the reasons given, to allow this Application for seeking condonation of delay.11. On merits, the only explanation which the Revision Petitioner has given with respect to proof of delivery, was that there is no record to that effect and that it was time barred. It is pertinent to note that despite repeated opportunities given before the District Forum they did not choose to file their Written Statement and when their right was closed, the same order was not challenged before the State Commission by way of a Revision Petition.12. Learned Counsel for the Revision Petitioner argued that the Registered Post was not returned and therefore it is assumed to be delivered. He further submitted that the Complainant did not submit his expenditure statement despite a notice served on him on 09.08.2010. Therefore the Complainant was very much in the knowledge on 09.08.2010 that his expenditure statement has not reached the Election Commission and cannot blame the Petitioner herein for having been debarred form contesting the Election.13. The facts not in dispute are that the Complainant sent a letter by Registered Post on 23.06.2009 giving details of his Election Expenditure to Shri Rahul Sharma, Deputy Election Commissioner/ District Election Officer, which was not received by the Election Commission. It is the Complainant’s case that vide letter dated 09.05.2012, he was debarred from contesting any Election for a period of three years, on account of non-submission of accounts of Election Expenses. Both the fora below have given concurrent finding of fact that this letter substantiates the contention of the Complainant that the Registered Parcel did not reach its destination. It is pertinent to note that admittedly the Petitioner- Union of India did not file any documentary evidence to establish that the Registered Letter was received by the addressee. In fact their only explanation was that proof of delivery could not be furnished as there are no records to that effect.14. Learned counsel for the Petitioner took shelter under Section 6 of the Indian Post Officer Act, 1898 which gives them immunity from any liability towards loss and damage. He vehemently argued that the fora below have not taken this into consideration while awarding the compensation. This Commission in Post Master General, West Bengal Circle General Post Office (GPO) Vs. Dipak Banerjee & Anr. IV (2015) CPJ 329 (NC) has held as follows:“10. In order to appreciate the rival stands, it would be necessary to analyze the scope of Section 6 of the said Act, which reads as follows:“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 willful act or default.”11. The Section is in two parts. The first part provides for a complete immunity to the Government, unless some liability is undertaken by the Government under the statute in express terms. Similar immunity is extended to the officers of the post office. The second part carves out an exception to the blanket immunity to its officers and provides that they can incur liability if it is shown that the loss, misdelivery, delay or damage, etc. had been caused fraudulently or by the willful act or default of such an employee. Thus, a plain reading of the Section leaves little scope for doubt that unless it is proved that the loss, misdelivery or delay has been caused fraudulently or by a willful act or default on the part of its officer, no claim would lie against the Postal Department merely by reason of the loss, misdelivery or delay or damage to the postal article, as the case may be, in the course of transmission of the article by post. In other words, the provision, an antiquated piece of legislation, dating back to the year 1898, grants total immunity to the Postal Department from incurring any liability for delay in delivery of the article in the course of its transmission by post, unless a fraud or willful act or default on the part of its employee is proved.13. Therefore, the question is whether the Complainant has proved that the delay in delivery of the letter, transmitted by speed post for delivery, was due to wilful act or default on the part of an employee of the Postal Department?14. It is a cardinal principle of law that ordinarily the burden of proving the fact rests on the party who asserts the affirmative issues and not on the party who denies it. Nevertheless, there is distinction between the phrase ‘burden of proof’ and ‘onus of proof’. Explaining the said fine distinction, in A. Raghavamma and Anr. Vs. A. Chenchamma and Anr., 1963 (SLT Soft) 139=AIR 1964 SC 136, a three-judge Bench of the Hon’ble Supreme Court held that there is essential distinction between burden of proof and onus of proof. Burden of proof lies on the person who has to prove a fact and it never shifts, but the onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence.15. It is manifest from the statement of Objects and Reasons and the scheme of the Act that its main objective is to provide for better protection of the interests of the consumer. To achieve that purpose, a cheaper, easier, expeditious and effective redressal mechanism is provided in the Act, by establishing quasi-judicial forums at the District, State and National level, with vide range of powers vested in them. The rigours of the Evidence Act, 1872 and the Code of Civil Procedure, 1908 are not applicable to the proceedings before these quasi-judicial bodies. Therefore, having due regard to the scheme and the purpose sought to be achieved, viz. better protection of the interest of the consumers, the provisions of the Act have to be given purposive, broad and positive construction, more so, when Section 3 of the Act provides that the remedy under the Act is in addition to and not in derogation of any other provision of law.16. In order to give effect to the said objective of the Act. In our view, if an addressee of the letter is able to create a reasonable degree of probability that there was wilful default on the part of an employee to the Postal Department, the onus would shift on the said Department to discharge the onus to prove its denial, particularly when the addressee, the aggrieved party, does not have any access to the internal working of the post office.”15. The material on record establishes that the Complainant has suffered on account of non-delivery of the letter explaining his Election Expenses and therefore the Petitioner cannot take shelter against Section 6 of the India Post Office Act especially in the light of the fact that no plausible explanation was given for the non-delivery of the letter. There was no response from the Petitioner to the Complaint given by him and it is also pertinent to note that there was no enquiry report filed before the fora below. The attitude of the Department creates a reasonable degree of probability that there was wilful default on the part of the employees of the postal Department and therefore the onus shifts on the Petitioner to discharge the onus to prove its denial particularly when the addressee does not have any access to the functioning of the Post Office. This leads to the conclusion that there was a wilful default on the part of the Petitioner which is not disclosed herein and thereafter the case of the Complainant falls within the ambit of the exception carved out in Section 6 of the said Act. It is not their case that the letter was delivered late. In fact it is their submission that they have no records at all and therefore no explanation can be given for non-delivery of the said letter. It is also pertinent to note that the Petitioner did not file their Affidavit of Evidence before the District Forum despite having been given several opportunities. Support is also lent to this view by a five member bench of this Commission in Post Master, Ranipet HO & Anr. Vs. Shri N.B. Janakiraman, 2001 (3) CPR 189 (NC).16. Having regard to the concurrent finding of both the fora below, the aforenoted reasons, judgements and also the unexplained delay of 56 days this Revision Petition is dismissed on both delay and merits, keeping in view our limited revisional jurisdiciton as envisaged by the Hon’ble Apex court in Rubi (Chandra) Dutta Vs. M/s. United India Insurance Co. Ltd. (2011) 11 SCC 269.17. In the result, this Revision Petition is dismissed accordingly with no order as to costs.