This judgment dismisses a writ petition seeking quashing of orders rejecting a recall and restoration application in a consumer dispute. The court held the petitioner failed to prove delivery of goods and found no error in lower orders.
The writ petition seeking quashment of the impugned orders was dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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Court No. - 39
Case :- WRIT - C No. - 47737 of 2008
Petitioner :- Arun Kumar Singh Respondent :- District Consumer Protection Forum Allahabad And Others Counsel for Petitioner :- Anil Kumar Aditya
Hon'ble B. Amit Sthalekar,J. Hon'ble Piyush Agrawal,J.
Heard Sri Anil Kumar Aditya, learned counsel for the petitioner and the learned Standing Counsel for the respondents no.1 & 2.
The petitioner in the writ petition is seeking quashing of the two orders both dated 09.07.2008 passed in Execution Case No.39/2001 (Varsha Mohan Vs. Speedman Express) and in Execution Case No.40 of 2001 (Satyendra Mohan Vs. Speedman Express).
Briefly stated the facts of the case are that the respondents no.3 & 4 booked two envelops through Speedman Express Courier Company to be delivered by ordinary post to the Union Public Service Commission, Dhaulpur, New Delhi. It is stated that the employee of the Speedman Express Courier Company at New Delhi went to the office of Union Public Service Commission, who informed that the envelops were not being received nor any receipt was given but the forms were being kept in a steel box. It is alleged that the packets booked by the respondents no.3 & 4 were delivered in the said box and proof of delivery was returned to the petitioner. As a result of non-delivery of the two packets booked by the respondents no.3 & 4 with the Speedman Express Courier Company two cases were registered as Case No.133/98 and Case No.134/98 before the District Consumer Forum, Allahabad. Notices were issued but the petitioner did not participate in the proceedings and therefore, an ex parte order was passed on 03.02.2001 in both the cases fastening the liability on the
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petitioner's Firm. Damages of Rs. 5,000/- and Rs.800/- by way of cost was imposed against the Speedman Express Courier Company.
Aggrieved by the order dated 03.02.2001 the petitioner filed two Appeals being Appeal No.1315/SC/2001 (Speedman Express Vs. Sri Satendra Mohan) and Appeal No.1314/SC/2001 (Speedman Express Vs. Smt. Varsha Mohan). These two appeals were duly considered by the State Consumer Disputes Redressal Commission, U.P. Lucknow and dismissed vide order dated 07.02.2008. On 23.05.2001 the petitioner filed two restoration applications, one in Case No.133/98 and the other in Case No.134/98 supported by affidavits and both these applications have also been dismissed by the two impugned orders both dated 09.07.2008.
The petitioner's first contention is that respondents no.3 & 4 have not been able to show that two packets booked with the Speedman Express Courier Company were not actually delivered to the Union Public Service Commission and therefore, there is no error on the part of the Speedman Express Courier Company in booking and delivering of the goods.
This plea has to be rejected at the outset itself as the burden lay on the petitioner to establish delivery of the two packets to the Union Public Service Commission.
The petitioner's second contention is that he was merely a Manager of the Speedman Express Courier Company and therefore liability cannot be fastened on him. However, this plea does not appear to have been taken by the petitioner before the Appellate Authority, as there is no discussion of the same in the judgment of the State Consumer Disputes Redressal Commission, U.P. Lucknow. The memo of appeal has not been filed by the petitioner with the writ petition to show exactly what grounds were taken by him before the Appellate Authority and whether this specific plea was taken by him before the
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Appellate Authority.
In the proceedings before the District Consumer Forum the Speedman Express was impleaded in the array of respondents through the petitioner as Manager/Proprietor of the Firm.
Learned counsel for the petitioner has referred to his application filed as Annexure-5 to the writ petition to submit that he has taken this plea that he is only a Manager and had been removed from service thereafter and therefore, the liability for damages could not have been fastened upon him.
However, as already noted above the Speedman Express was impleaded through the Manager/Proprietor. It is nowhere the case of the petitioner that he was not the Proprietor of the Speedman Express, neither in his affidavit filed in support of the restoration application nor in his subsequent affidavit filed as Annexure-5 to the writ petition. All that has been stated is that he has been removed from Speedman Express. The removal order has not been filed which might have established his status as an employee but at the cost of repetition it may be noted that there is no averment anywhere that he was not the Proprietor of the Firm.
Even otherwise the petitioner in the writ petition is only challenging the two orders both dated 09.07.2008 whereby his application for recall of the order dated 03.02.2001 has been rejected. Once the petitioner's appeal against the order of 03.02.2001 was itself dismissed on 07.02.2008, the subsequent order dated 9.7.2008 rejecting his restoration application will at the most give him a liberty to file appeal or to file recall of the appellate order, neither of which has been done by the petitioner.
Even in his affidavit filed in support of the recall application the petitioner has not been able to establish that the two packets booked with the Speedman Express Courier Company were actually delivered
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to the Union Public Service Commission. The case of the respondents no.3 & 4 specifically is that in the Advertisement of the Union Public Service Commission, Delhi there was a specific provision that the application form shall be accepted after giving a receipt for the same rather than simply putting it in a steel box. All that has been stated by the petitioner is that two packets were put in the steel box on the instructions of the employee of the Union Public Service Commission but there is no documentary proof of receiving of the two packets in the office of the Union Public Service Commission. No rejoinder affidavit has been filed denying the averments of the counter affidavit although copy of the counter affidavit was served on the counsel for the petitioner as far back as on 10.11.2008.
For reasons aforesaid, I do not find any illegality or infirmity in the impugned orders.
The writ petition lacks merit and is accordingly dismissed. Order Date :- 5.12.2018 N Tiwari
2 issues framed by the court
Whether the petitioner discharged the burden to establish delivery of packets to the Union Public Service Commission.
Whether there is any illegality or infirmity in the impugned orders rejecting restoration and recall applications.
Arun Kumar Singh
District Consumer Protection Forum Allahabad
State Consumer Disputes Redressal Commission
Speedman Express
B. Amit Sthalekar
Piyush Agrawal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
