Anil Srivastava, Member (G)1. These two appeals, namely, FA 765/2010 assailing the orders dated 22.05.2009 passed by District Consumer Disputes Redressal Forum, New Delhi in CC-1491/05, holding the Post Office as deficient and directing the OPs to pay Rs. 42,966/- as also compensation of Rs. 10,000/- for causing mental harassment and Rs.5000/- for litigation charges, and another, FA839/2010, assailing the orders dated 10.12.2008 passed by the same District Forum in CC-1490/05, again holding the Post Office deficient and directing the OPs to pay Rs. 25,494/- as also compensation of Rs. 8000/- for causing mental harassment and Rs. 2,000/- as litigation charges both filed by the same Post Office and both against the same respondents, praying for setting aside the two orders, were listed before us for final hearing on 06.04.2018. Counsel for both sides appeared and advanced their arguments. We have perused the records of the case,
2. We propose the dispose of both the appeals, by a common order the facts of both the cases being identical and the law points involved being the same.
3. Facts of the case necessary for the disposal of the appeal are these.
4. On 27.09.2003 M/s Nikki Overseas Company had sent a parcel of 5880 grams stated to have contained 90 pieces of Q and Q Wrist watches worth Rs. 42,966/- vide booking receipt No. SPE263 946762 to be delivered to M/s S.R. Marketing behind Chand and Shah Takiya Market, Link Road Sojatigate, Jodhpur, Rajasthan. The bag reached Jodhpur on 30.09.2003 but in defective condition. When the bag was opened in the presence of the Post Office officials at Jodhpur and the addressee it was found that the items had been abstracted. This according to the complainant/ respondent was deficiency of service and that being the case, a complaint was filed before the District Forum for the redressal of the grievances which complaint was allowed by the District Forum as stated above, leading to filing of this appeal.5. In this case, same M/s Nikki Overseas Company had sent a parcel of 5216 grams stated to have contained 62 pieces of Q and Q wrist watches worth Rs. 25,494/- and in this case, the deficiency on the part of the OP is that it did not reach the addressee. In this case also a complaint was filed before the same District Forum which complaint was also allowed with directions to the opposite parties/appellants, leading to filing of this appeal.
6. The grounds taken by the appellant in both the appeals are same and identical, stating that the complainant in both the cases had not subscribed to any declaration of the items sent by parcel. Secondly the items were not insured. Thirdly the District Forum had not correctly appreciated the facts and finally the District Forum ignored the fact that as per the post office guide part I, Clause 170(2) no compensation would be given for loss of damage of the items/articles in the course of transmission by the office.
7. Respondents were noticed in both the cases and in both the cases, the respondents have filed their reply to the appeal resisting the appeals on the ground, among others, that there exists delay and thus relying on Section 15 of the Consumer Protection Act the appeal is not maintainable. However the delay in filing the appeal having already been condoned, the objection so raised no longer subsists. Secondly they have denied the applicability of the provisions of Post Office guide Part-I, Clause 170(2) in these cases. Finally they have reiterated that there exists indisputably deficiency on the part of the appellant/OP in handling the parcel sent.
8. We may now deal with the matter on merit. Section 6 of the Indian Post Office Acts reads as under:'Exemption from liability for loss, mis-delivery, delay or damage- the Government shall not incur any liability by reason of the loss, mis-delivery 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, mis-delivery, delay or damage, unless he has caused the same fraudulently or by his wilful act or default.'9. Rule 170 of the Post Office Guide Rules posits as under:
'170 Compensation (1)
The head of the Circle may grant to the sender, or at his request to the addressee solely as an act of grace, and not in consequence of any legal liability compensation upto a limit or Rs.50 for the loss of any inland letter, packet, packet or parcel, or its contents or for any damage caused to it in course of transmission by post, subject to the following conditions.
1. That the prescribed registration fee shall have been prepaid in addition to the postage.
2. That the application for compensation shall have been made within three months of the date of posting of the article in the case of loss of contents or damage.
3. That the amount of compensation shall not exceed the actual amount of the loss or damage and that such amount can be referred directly to some loss or damage.
4. That the decision of the Director-General on all questions of compensation shall be final.'
Rule 172 enables insurance of valuable letters and parcels upto Rs. 10,000/-. On a conjoint reading of Section 6 of the Post Office Act, along with Rule 170 extracted hereinabove, it is evident that only an ex-grants amount can be paid by the Head of the Circle in the case of the loss of a parcel and no compensation based upon the value of the parcel is payable unless the parcel is duly insured in terms of Rule 172, in which case, the value of the insured article is to be restricted to Rs. 10,000/-. The complainant had not got his parcel insured at the time it was delivered to the post office for carrying to the place of his brother in Orissa. Therefore, he is not entitled to any compensation and only the ex-gratia amount already sanctioned by the petitioner is payable to him.10. On perusal of Section 6, it is noted that there is not even an iota of evidence that the loss was caused fraudulently or by postman’s wilful act or default. Mere negligence does not suffice. The element or mens-rea is conspicuously missing under Section 6. It is the loss of the Government and not loss to the owner of the postal articles. The liability of Government of India for loss or mis-delivery of insured articles and loss in the course or transmission by post is not contractual but purely statutory in nature.
11. The ld. Counsel for the appellant during the course of the argument while stressing that under Section 6 of the Indian Post Office Act they have the exemption from any liability, placed before us two judgments passed by the Hon’ble NCDRC holding that the services rendered by the post office are statutory. Those judgments are:
a. The chief Post Master General New Delhi versus Mrs. Pooja Gupta (RP 3591 of 2009) decided on 08.12.2014, and, secondly,
b. Post Master and 2 ors versus Sarashwar Sahoo (RP 3125/2016) decided on 09.10.2017.
12. In the first order the Hon’ble NCDRC relying on its four Bench Members orders in the matter of Presidency Post Master and another versus Dr. U. Shanker Rao in RP No-175 and 247/1992, decided on 15.04.1993 holding as under:'Services rendered by the Post Office are merely statutory and there is no contractual liability. Establishing the Post Offices and running the postal service the Central Government performs a governmental function and the Government does not engage in commercial transaction with the sender of the article through post and the charges for the article transmitted by post is in the nature of charges posed by the State for the enjoyment of the facilities by the Postal Department and not in consideration or any commercial contract. The Post Office cannot be a equated with a common carrier.'
held that the service rendered by the Post Office is statutory and the post office cannot be equated with a common carrier.13. The Hon’ble Apex Court in the matter of Union of India versus Mohd. Nazim as reported in AIR1980 SC 431 have held as under:'These are only some of the provision 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 India 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 Triafus and Co.Ltd. V. 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 v. Le Despencer (1778) 2 Cowp. 754. In the course of his judgment, Lord Mansfield said, 'The Post Master has no hire, enters into no contract, 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 an a common carrier.'
14. The Five Member Bench of the Hon’ble NCDRC in the matter of Post Master, Imphal and ors versus Dr. Jamini Devi, Sagolband- RP986/1996 relied by the Hon’ble NCDRC in the matter of Post Master and 2 others versus Sarbeshwar Sahoo (RP 3125/2016) was pleased to hold, among others, as under:'In others 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-d
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elivery 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.' 15. For all these reasons and the discussion done, particularly in view of the decision of the Five Member Bench of the Hon’ble NCDRC in the matter of Post Master, Imphal and ors(Supra), the impugned orders cannot be sustained and the same are accordingly set aside. However the amount already sanctioned by the appellant shall be paid to the respondents in both the cases if not already paid. 16. A copy of this order may be forwarded to the parties to the case free of cost as statutorily required. 17. Registrar of this Commission is requested to place on the record of FA 839/2010 a certified copy of this order. 18. Both the files be consigned to record.