Chief General Manager Telecom vs Ajay Mohan Ray

THIS appeal arises out of order dated 10.1.2002 passed in C.D. Case No. 13 of 1999 by the District Consumer Disputes Redressal Forum, Khurda, Bhubaneswar, wherein the appellants have been directed to pay jointly and severally a sum of Rs. 1,000 along with cost of Rs. 500 to the complainant, within 30 days from the date of receipt of the order. Being aggrieved with the said order, the appellants have preferred the present appeal.

THE allegation of the complainant was that he had sent an Express Reply paid Telegram from Bhubaneswar to one of his relative Sri N. Barik who was residing at Burdhwan (West Bengal) on 12.5.1998 communicating an important message that ''Panchami left Bhubneswar on eighth instant without anybodys knowledge confirm her arrival''. But as ill luck would have it, he did not receive any message of arrival of Panchami till 26.5.1998 though it was a reply paid telegram. Then he proceeded to Burdhwan on 27.5.1998 and there he found that the telegram did not reach the destination. Then he made complaint before the appellants and requested them to pay him compensation for their deficiency in service. He received reply from the appellants that the matter is under investigation. After receiving the Lawyer Notice from the complainant the appellants replied the complainant that the telegram was transmitted from Calcutta to Suri, but it was not received at Suri. They admitted that the telegram was lost in between Calcutta to Suri. Being unable to get compensation, the complainant filed the dispute case before the Forum below claiming compensation and cost from the appellants. In the Forum below the appellants took the plea that the telegram was sent from Calcutta to Suri, but it was lost in between due to technical fault, for which it could not reach the destination. According to them, the complainant may get refund of the booking cost of the telegram, but he is not entitled to any compensation in view of the provision in Rule 9 of the Indian Telegram Act and Rules and the terms and conditions of the telegram. The District Forum after considering the contentions of the parties and after perusing all the materials on record has observed that the appellants has not filed any documentary evidence to show that the loss of the telegram was due to technical fault. Their letter under Annexure -L of the complaint petition also does not support his plea. This is a case of reply paid telegram and the complainant was not intimated about the loss of telegram. So, the District Forum held that this is a clear case of deficiency of service due to negligence of the appellant. Having hold this, the District Forum has awarded Rs. 1,000 to the complainant along with a cost of Rs. 500.

HEARD Mr. P.N. Mohapatra, the learned Counsel for the appellants and Mr. A.K. Samal, Advocate for the respondent. Mr. Mohapatra has strenuously argued on behalf of the appellants and cited a number of decisions. Mr. Samal also cited several judgments in support of his case. We did not appreciate the contention of the appellant that as the telegram facility if provided under the provisions of the Indian Telegram Act and Rules in exercise of sovereigns function of the Government of India, there is no question of hiring of service by the complainant and that the Government is not responsible for loss and damage which may occur due to negligence of any Telegraph Officer failing in duty with respect of receipt, transmission or delivery of any message and no such officer shall be responsible for any such loss or damage unless, he causes the same negligently, maliciously and fraudulently.

SIMILAR question arose for consideration in Junior Telecom Officer (TD) v. A.B.P. Rao, in C.D. Appeal No. 681 of 2003, order dated 25.4.2005 , III (2005) CPJ 708=100 (2005) CON.LT 25 (CDC), passed by this Commission as to whether transmission of message by means of telegram can be held to be in course of exercise of sovereign functions so that the State or its officers can take protection of sovereign immunity. By relying upon the judgments rendered by Honble Mysore High Court (vide 170 Mys. 19) and Honble Himachal Pradesh High Court [vide (1992) 1 Cr. L.J. (Cr. & Rev.) 122], we have held that the Telecom Department, while transmissing message by means of Telegram can be said to be rendering public utility service and, therefore, it cannot be considered strictly an exercising sovereign power of function. So, their first contention is rejected. Their next contention is that as per Section 9 of the Indian Telegraph Act, Government is not responsible for loss and damage which may occur due to negligence of any Telegraph Officer failing in duty with respect of receipt, transmission or delivery of any message unless the same caused negligently, maliciously and fraudulently. In the instant case the telegram was lost in the way between Calcutta and Suri. This is nothing but a clear example of negligence committed by the officers of Department in transmitting the telegram. The District Forum has overruled the contention of the appellants that the telegram was lost due to technical fault was after -thought as the same was not mentioned in their reply vide Annexure -L of the complaint petition. The plea of technical fault was taken later on in the written version to riggle out from their deficiency in service. Default is failure in rendering service. In the instant case the concerned officer failed to discharge his duty in sending the telegram as the telegram was not received at Suri and thereby caused deficiency in service. As to what is the wilful or default, we need not go to any treatise on the interpretation of these terms or to any judgment for the purpose. We have to see from a consumer point of view as to what is wilful or default when interpreting particular provision which we did in the instant case. We also fully agree with the District Forum that this is a case of reply paid telegram and the complainant was not intimated about the loss of telegram. So, the District Forum has rightly held that this is clear case of deficiency in service.

THE rules for inland Telegrams cited by the appellants does not hold good in the present day context. Their contention is that they are only liable for refund of cost of telegram only to the consumer in case of loss of telegram is nothing but a clear case of avoiding to pay compensation to the consumer in case of loss of telegram. The Consumer Protection Act, 1986 is an independent statue and is self contained and does not postulate any liability that is limited to the extent as laid down in the above rules. It was for the purpose of bringing efficiency in working of the service providers and manufacturing and sale of qualitative goods by the traders and to protect the interest of consumer that this special statute was brought on the statute book. Any dispute that falls within the ambit of ''Consumer Dispute'' under this act is an independent dispute of any liability arising from ''deficiency, as defined by this Act is a liability independent of any other law. Had this law not been brought on the statute Book, the Government functionaries would have become unaccountable, lethargic and inefficient and other provider of service and the traders would have been indulging in unscrupulous activities in selling fake goods and rendering deficiency in service.

AFTER hearing the argument from both the sides and after examining the available materials on records, we find no infirmity in the order passed by the District Forum. The District Forum has awarded a reasonable compensation in favour of the complainant taking due consideration of his mental agony and harassment. We accordingly confirm the order passed by the District Forum and dismissed, the appeal however without cost.