ASSISTANT SUPERINTENDENT OF TELEGRAPH TRAFFIC vs SAKTHIVEL

THIS appeal is by the opposite party Telegraph Department against which an award has been passed by the District Forum. The case of the complainant is that one Ms. Amarjothi has sent a telegram from Madurai to the complainant there in at Villupuram on 20.8.1995 at 6 p.m. According to the complainant, the telegram should have reached him in the night on 20.8.1995 or the next day, but it was delivered to him only on 24.8.1995 at 10 a.m. The message was a death message. Because of the late delivery of the telegram, the complainant could not be present for the funeral and the person deceased was the complainant''s paternal uncle''s wife. Due to this, the complainant was very much worried. Alleging deficiency in service on the part of the opposite party, the complaint was filed.

THE opposite party contended that the address given in the telegram was insufficient and the door number was not given, and therefore two times the telegram was taken by the messenger but they could not find the addressee at the given address. But subsequently, with the help of the postal people, the messenger could get at the complainant to deliver the telegram to him. It was further pleaded that in view of Section 9 of the Indian Telegraph Act the opposite party cannot be held liable to pay any compensation. The District Forum, on consideration of pleadings and evidence, accepted the case of the complainant that there was deficiency in service on the part of the opposite party. On this finding, it ordered the opposite party to pay a compensation of Rs. 2,000/- to the complainant.

Now in the appeal, it is contended that the order of the District Forum is against the evidence and the law and therefore it is liable to be set aside.

ON perusal of the telegram marked as Ex. B-l we find therein the Door Number has not been given. It is pointed out by the learned Counsel appearing for the appellant/opposite party that even as per the averments in the complaint the village where the complainant was residing, was having about 60 to 65 houses. This is not a case of non-delivery but this is a case of delay in delivery. In these circumstances it would appear that it is only because of the defect on account of insufficient address, the messenger could not reach at the complainant to deliver the telegram and that was the reason for the delay of 5 days in delivering it. However it may be, the National Commission in Union of India & Anr. v. Tej Bhan, I (1996) CPJ 237 (NC), R.P. No. 130/95, decided on 30.1.1996, has held to the effect that in view of Section 9 of the Indian Telegraph Act unless it was established that the delay in delivery of the telegram was a mischievous act or there was any mala fides on the part of the Department, the Telegraph Department cannot be held to be liable to pay any amount as compensation to the complainant. Further, Rule 5 of the Indian Telegraph Rules reads as follows: "5. The accuracy of telegrams is not guaranteed, and all telegrams shall be deemed to be sent subject to acceptance by the sender of all risks arising from non- delivery, errors or delays."

THIS rule makes it clear that a telegram shall be deemed to be sent subject to the acceptance by the sender, of all risks arising from non- delivery, errors or delays. Therefore, no question of payment of any compensation for delay in delivery arises. In addition to this, the complainant is not the sender of the telegram but he is only the addressee of the telegram. A reading of Section 12 of the Consumer Protection Act makes it clear that the person who has hired or availed of the services of the opposite party can only file a complaint. That being the case, the complainant being not the person who has hired or availed of the services of the opposite party and he being only the addressee, he is not competent to file the complaint. For these reasons, we hold that the order of the District Forum cannot be upheld to be correct. In this view of the matter, we allow the appeal, set aside the order of the District Forum and dismiss the complaint. However, there will be no order as to costs. Appeal allowed.