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2006 DIGILAW 213 (BOM)

Devendrakumar Tolaramji Baid v. Union of India

2006-02-15

B.B.VAGYANI, S.G.NAGARALE

body2006
Justice Mr. B. B. V AGY ANI, Hon'ble President, J.: - Unsuccessful complainant in consumer complaint no.63/200 1 has preferred this appeal having felt aggrieved by the dismissal order dated 28 - 9 - 2001 passed by the District Consumer Forum Chandrapur. In brief facts giving rise to this appeal are as under : For sake of brevity, we refer the appellant as "complainant" and respondent as "O.P." 2. Complainant purchased 454 postal orders worth of Rs.47,441.50 on .15 - 4 - 1999 payable to the "President, Government of India, Indian Railway Works". Complainant was deceived by unknown person, who represented himself as Mr. N. V. Katkar, Deputy Engineer, Survey of India and took custody of postal orders. After having realised commission of fraud and misrepresentation, complainant requested senior Superintendent of Post office, Chandrapur to stop payment. Accordingly, payment was stopped. The complainant thereafter submitted an application on 31 - 5 - 1999 for repayment. Request for repayment was repudiated on the ground that original postal orders were not presented as per clause no.253 of the Post Office Act 1985. In order to redress his grievance, complainant approached the District Consumer Forum. District Consumer Forum by impugned order dismissed the complaint. 3. We heard Mr. M. P. Khajanchi Advocate for the appellant & Ms. Usha Tanna Advocate for the respondent. 4. Clause no.253 of Post office Act 1985 runs as under ; "Repayment to Purchaser - The purchaser of an Indian Postal Order can obtain repayment of its value (but not the commission), on presenting the order and the counterfoiJ at the post office from which the order was purchased within six months from the last day of the month of issue. He will also be entitled to repayment of its value after six months, but not after twelve months, from the last day of the month of issue provided a second commission at the rates prescribed is paid. Should the order have been crossed for payment through a Bank the purchaser must first cancel the crossing by writing across the face of the order the words. "Please pay cash" and add in his initials." 5. It is true that for repayment strictly speaking production of original postal orders and counter foils are necessary. The complainant could not present original postal orders before competent authority for repayment. The complainant was victim of fraud and 'misrepresentation. "Please pay cash" and add in his initials." 5. It is true that for repayment strictly speaking production of original postal orders and counter foils are necessary. The complainant could not present original postal orders before competent authority for repayment. The complainant was victim of fraud and 'misrepresentation. It is not the case of Postal department that postal orders purchased by the complainant were encashed by unknown person. Postal department has already stopped the payment of postal orders. The complainant moved the competent authority for repayment within, prescribed time limit of 6 months from the last date of the month of the issue. The Postal department ought to have taken into consideration the element of fraud and misrepresentation and should have made repayment to the complainant. In an exceptional 'and extra ordinary situation like present one, the Postal department ought to have entertained the prayer of the complainant for repayment on production of counter foil. Suppose the original postal orders are gutted in fire. In such a contingency, it is impossible for the purchaser to present original postal orders for repayment. Similarly, in case of loss of custod of original postal orders, a case like present one, competent authority should have considered the prayer of complainant for repayment. 6. In exceptional and extra ordinary situation, competent authority is required to act in a reasonable manner. Every problem has a solution. Justice cannot be denied on the basis of harsh interpretation of the rule. Rules are made to advance justice and not to punish the purchaser of the postal orders. In clause no.253 of the Post Office Act 1985, repayment is contemplated on the presentation of postal order and the counter foil. Sometimes the word "and" is required to be read as "or" to advance justice. In Judicial dictionary by K.J. Aiyar, 12th Edition 1998 meaning of "and" is shown as "or". It is stated that "and' has to be taken disjunctively or distributive as equivalent to "or". The word "and" is sometimes read as "or'. In Stroud's Judicial Dictionary, 4h Edition, it is stated that "and" has generally a cumulative sense requiring the fulfillment of all the conditions that it joins together and herein, it is the antithesis of "or". Sometimes, however, even in such a connection, it is, by force of a context, read as "or". 7. In Stroud's Judicial Dictionary, 4h Edition, it is stated that "and" has generally a cumulative sense requiring the fulfillment of all the conditions that it joins together and herein, it is the antithesis of "or". Sometimes, however, even in such a connection, it is, by force of a context, read as "or". 7. It is further stated that word "and" may be used as equivalent to "every" and sometimes "and" can be interpreted as "or" if the literally reading of the words produces unintelligible or absurd result. 8. In the case of Food Inspector, Trichur Municipality .... appellants Vs. Paul and another ..... respondents AIR 1965 Kerala 96, similar kind of exercise was made. Word "and" in section 2(1)(j) of Prevention of Food Adulteration Act 1954 is read as "or'' - 9. The Supreme Court in the case of Shamrao V s. District Magistrate, Thana, AIR 1952 SC 324 , which interpreting section 3 of the Public Safety Measures Act, observed as under ; - "It is the duty of Courts to give effect to the meaning of an Act when the meaning can be fairly gathered from the words used, that is to say, if one construction will lead to an absurdity while another will give effect to what common sense will show was obviously intended, the construction which would defeat the ends of the Act must be rejected even if the same words used in the same section, and even the same sentence, have to be construed differently. Indeed, the law goes so far as to require the Courts sometimes even to modify the grammatical and ordinary sense words if by doing so absurdity and inconsistency can be avoided." Supreme court in the case of Siraz - ul - Haq Vs. S.C. Board of Waqf, U. P., AIR 1959 SC 198 held that, "It is well settled that in construing the provisions of a statute courts should be slow to adopt a construction which tends to make any part of the statute meaningless or ineffective, an attempt must always be made so to reconcile the relevant provisions as to advance the remedy intended by the statute. In such a case, it is legitimate and even necessary to adopt the rule of liberal construction so as to give meaning to all parts of the provision and to make the whole of it effective and operative." 10. In such a case, it is legitimate and even necessary to adopt the rule of liberal construction so as to give meaning to all parts of the provision and to make the whole of it effective and operative." 10. In the case of Ishwar Singh Vs. State of U.P., AIR 1968 Supreme Court 1450, Supreme Court observed to the effect that, "And' has generally a cumulative sense requiring the fulfillment of all the conditions that it joins together and herein, it is the antithesis of "or". Sometimes, however, even in such a connection, it is by force of a context, read as "or". Sometimes to carry out the intention of the legislature it is found necessary to read the conjunctions "or" and "and" one for the other.' 11. The original counter foil is also part of postal order. Under given situation, competent authority is required to interpret word "and" as "or" giving liberal construction. The competent authority could have made repayment to the complainant. We, therefore, hold that the action of repudiation of the claim for repayment amounts to deficiency in service. Under the circumstances, dismissal order passed by the Forum below cannot be sustained in law. By the way, we would like to mention that postal department was ready to make payment to the complainant after April, 2002. The cut off date is already expired. On this count also the complainant in any case in entitled to receive the value of postal orders. In the result, we pass the following order ; ORDER 1. Appeal is allowed. 2. Impugned order of dismissal dated 28 - 92001 passed by the Forum below is hereby quashed and set aside. 3. Complaint no.63/2001 is partly allowed. 4. We hereby direct the respondent, Union of India, represented by Post Master, Head post office, Chandrapur to pay Rs.47,441.50 ps. to the complainant together with interest @ 6% p.a. from 31 - 5 - 95 till the date of realization, on production of original counter foils. 5. Respondent/org O.P. is directed to comply this order within a period of 30 days from the date of receipt of the order. 6. No order as to costs. 7. Declared in open court. 8. Copies of the order be furnished to the parties. Appeal allowed.