Head Postmaster, Ponnai, Kerala And Ors. vs V. Ayyapan

THIS case reflects the saga of a helpless and hapless father, who was denied a chance to see the face of his dead son due to callous, careless, casual and apathetic approach adopted by the postal authorities which has led to indescribable, unexplainable and unending misery to the father that his son was buried like an orphan as he could not get the opportunity to perform the last religious rites and rituals for the peace of his son''s departed soul.

THE crux of the case is that the telegram sent by the hospital reached Mr. Ayyappan much after his son was buried in the public municipal burial ground by the municipal authorities.

UNDER the garb of absolute immunity and protection given under Section 9 of the Indian Telegraphic Act, 1885, a public servant cannot always shield himself under that veil. Being insensitive even in such situations is nothing but negligence and wilful default as they have not extended their service to deliver a telegram relating to death of a son as they have not even bothered to check up with nearby post offices to help a fellow citizen. Postman in small towns/villages is treated like a family friend to one and all as he knows almost all the habitants and is known to write letters for the illiterate villagers occasionally. But for Shri Ayyappan who works as a coolie, the receipt of Rs. 1,000 from his son just a month before, which was earned from selling tender coconuts in Mumbai, is the last communication received before his son''s death. Ever since this incident took place, it is an ongoing misery to his tale of woes of regret that he could not fulfil his duty as a father to the 19 -year -old dead son by performing last rites.

BRIEF facts of the case that lead to this incident are:

RESPONDENT Shri V. Ayyappan''s son, Mr. Rajesh, was 19 years old and he was working in Bombay as a tender coconut vendor and sending money to his father. He was suffering from fever and his friends sent him off to his home town in Ponnani by train on 7.5.1998. Fever aggravated on the way in the train and the co -passengers helped him to get down at Thalassery Railway Station and with the help of passersby he got admitted in Government General Hospital, Thalassery on 9.5.1998. He was diagnosed to be suffering from Malaria, which became serious and he died at 6.30 a.m. on 10.5.1998. The hospital authorities sent a telegram at 10.21 a.m. on that day itself communicating that "Rajesh, S/o Ayyappan expired. Body kept in the mortuary. Start immediately". This telegram was delivered to Shri Ayyappan on 19.5.1998 at 10.15 a.m. On receipt of the telegram, he and his relatives rushed and reached the Thalassery in a taxi along with an ambulance at 4.30 p.m. But the hospital authorities buried the dead body of Mr. Rajesh in the public burial ground of Thalassery Municipality at 5.00 p.m. on 11.5.1998 as they do not have freezing facilities in the mortuary.

IN the meantime, Rajesh''s friends informed Shri Ayyappan that Mr. Rajesh boarded the train on 7.5.1998. Shri Ayyappan did frantic inquires for his missing son, and lodged a complaint with Chief Minister, Collector, S.P. and Circle Inspector. A news item was published in the Mathrubhumi'' daily on 19.5.1998 stating that Mr. Rajesh who started from Kurla, Mumbai to Ponnani disappeared under mysterious circumstances. Appellants from Ponnani Post Office saw the news item and then sent the telegram to the correct address to Biyyam Post Office, which was received by Shri Ayyappan on 19.5.1998. The address that was received by the Head Post Office, Ponnani was shown as "Ayyappan, Vadakekkara, House, Ponnani" and as there was no such person known in the jurisdiction of Ponnani Head Post Office it could not be delivered. The correct address is "Vadakkethala, House, Puzhambram, Post Biyyam". The telegram was received on 11.5.1998 at 9.04 a.m. but that being a postal holiday, the messenger tried to deliver it on 12th and 13th and as he could not find the address, it was entered in non -delivery register. These are the admitted facts by both the parties.

DISTRICT Forum dismissed the complaint No. 246 of 1998 by order dated 31.12.1998 placing reliance on Section 9 of the Indian Telegraphic Act, which reads as under: "The Government shall not be responsible for any loss or damage which may occur in consequence of any telegraph officer failing in his duty with respect to the 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 or fraudulently".

SHRI Ayyappan''s appeal being Appeal No. 433 of 1999 in the State Commission was allowed by order dated 21.6.2008 on the ground that there is deficiency in service on the part of the post office. On the basis of evidence of cross -examination of the Postal Assistant (DW.1), it held that appellants committed unfair trade practice according to the Consumer Protection Act and directed to pay a sum of Rs. 10,000 as damages with 9% interest per annum from the date of complaint till realization along with cost of Rs. 2,000.

THIS Commission by order dated 15.12.2008 sent a notice to the respondent returnable on 12.3.2009 with a direction to the petitioners to pay a sum of Rs. 5,000 to the respondent to enable him to come to Delhi and defend the case and that the payment shall be independent of outcome of the case. Another notice was sent by the Commission to both the parties informing the change of date i.e. from 12.3.2009 to 2.4.2009 and change of venue from New Delhi to Cochin Circuit Bench of National Commission. Petitioner was represented by his Counsel Mr. A.D.R. Prasad and none was present on behalf of the respondent.

LEARNED Counsel for the petitioners, Mr. A.D.R. Prasad, vehemently argued that Section 9 of the Indian Telegraphic Act protects the officers completely as there was no wilful default or negligence of the postal authorities in the present matter. He placed reliance on some decisions rendered by the National Commission. He submitted that the moment the postal authorities realized after gathering information from the newspaper that the correct address is under the delivery jurisdiction of Biyyam post office, the department has made efforts to deliver the telegram to the respondent on that day itself. The delay in delivery of the telegram is only due to incomplete and incorrect address furnished in the telegram, and hence, the finding of the State Commission that there is deficiency in service or unfair trade practice on the part of the petitioners is unjustified, and hence the same may be set aside.

HEARD the learned Counsel for the petitioners, perused the record and in our considered view the order passed by the State Commission is justified in the peculiar circumstances of this case.

FIRSTLY , it is a special category telegram as admitted in the cross -examination by the Postal Assistant (DW.1) attached to the post office for which extra fee was paid for each and every sentence. No telegraphic office receives message without full address of the addressee.

SECONDLY , Postal Assistant (DW.1) also deposed in the cross -examination at the District Forum that the telegram in this case was received through tele printer and not by the telephone. He also admitted that there is a possibility of errors in the tele printer messages, which means he knows that the address is wrongly messaged.

THIRDLY , when the message is of serious nature relating to death of someone''s son, the Postal Assistant could have easily checked the list of postal areas with this Vadakekkara House connecting any other place in the nearby areas, which has not been done. Whether it is Ponnani or Biyyam post office, they are all having telephone facilities and they are within the limits of 2.5 kms distance from each other. Postal Assistant did not lift his little finger to ensure that the address is correct by making further inquiry as there is a chance of error in receiving tele printer message, and ultimately the message is not being delivered to Shri Ayyappan.

FOURTHLY , the Post Master/Postal Assistant/messenger, who delivers the messages in these small towns, know every single person personally and it does not take much time for them to realise that such a person does not exist in that area. Mere statement that 11th is a holiday and that the messenger went on 12th and 13th to deliver the telegram to the same address sounds like a mechanical act without any purpose but even that evidence is not brought on record.

FIFTHLY , Rajesh was working in Bombay and his friends sent him in a train to get cured, to his father in his native place. Co -passengers in the train and also people in the railway station in Thalassery extended humanitarian service for saving Rajesh''s life by getting him admitted to Government Hospital for further treatment. The Superintendent of Government Hospital, Thalassery immediately sent a telegram to inform about the death of Rajesh to his father. What prevented the postal authorities from checking their list of nearby places? Is that so much of burden just to do an inquiry ? There is not even a whisper to that effect by them that they have checked with all nearby post offices. These are all villages within 2 to 2.5 kms distance from each other.

SIXTHLY , Shri Ayyappan''s agony started when he got the information from Rajesh''s friends that he boarded the train on 7.5.1998 and he made frantic inquires and lodged a complaint with the Government authorities about his missing son. The news was published in Mathrubhumi and later in Malayalam Manorama, Deshabhimani and Kerala Kaumudi, etc., once again on humanitarian grounds and concern for the anguished father/respondent, which was obviously lacking in the petitioners'' post office.

WHEN so many people have tried to locate the whereabouts of Rajesh and so many unconnected people have tried to help Rajesh to get well and got him admitted in the hospital, there is no reason why the paid employees working in the postal department could not have extended similar help on the same humanitarian grounds, one fails to understand. Taking a technical view and getting protection under Section 9 of the Indian Telegraphic Act and continuing to litigate on the same issue is the pathetic attitude of the petitioners. When there is a chance for error in the telegram, in such case, petitioners could have easily extended their service by a small inquiry.

SHRI Ayyappan is working as a coolie and Rajesh was the eldest son and he has three daughters and another son. The agony of a father who could not perform last religious rituals for his son who was buried in a public burial ground like an orphan is something one cannot even imagine. Saddened father, who did not get the opportunity to perform last rites for spiritual peace to his son, made him to file this complaint claiming compensation of Rs. 2,50,000. His agony that from his town Thalassery itself is at a reachable distance of three hours and Ponnani Head Post Office is within 2.5 kms is like being "so close yet so far". Had he received this information about his son''s death, he would have reached in time to see the body. There is no reason why the hospital could have given a wrong address as Vadakekkara House, Ponnani'' after getting the address from Rajesh itself. There is no reason for the hospital authorities to give different address to the telegraphic office. The death certificate (Exhibit P.5) issued by the Registrar of Births and Deaths, Thallasery Municipality shows the address of Shri Ayyappan correctly given by the hospital. It is obvious that the Superintendent of Government Hospital, Thallasery had given the correct address to the Telegraphic authorities and it is the postal authorities subsequently committed a mistake while transmitting the address, which clearly is deficiency in service.

THE Apex Court in Lucknow Development Authority v. M.K. Gupta, III (1993) CPJ 7 (SC), held that if a public functionary acts maliciously or oppressively and the result is harassment and agony, then, it is not an exercise of power but its abuse. It further held that "today the issue is not only of award of compensation but who should bear the brunt. The concept of authority and power exercised by the public functionaries has many dimensions. It has undergone tremendous change with the passage of time and change in the socio -economic outlook. The authority, empowered to function under a statute while exercising power, discharge public duty. It is imperative and implicit in the exercise of power that it should be for the sake of the society".

THE Consumer Protection Act is a beneficiary legislation and the provisions of the Act have to be construed in favour of the consumers to achieve the purpose of enactment as it is a socially benefit -oriented legislation.

IT is a well known fact that for centuries, the culture that is inculcated in many communities in our country is that the last rites are performed by the son to the father or vice versa. Rich or poor, but the last rites are performed to the departed soul with utmost religious sanctity as that last journey is attended by the family and friends offering special prayers to bring peace to the soul. Indian culture embodies sensitivity in every sphere of life and utmost sympathy is shared and shown in cases such as death. It is for the petitioners to protect this sensitivity in people of this country and not protect themselves on the grounds of technicalities under the umbrella of protection. Role of a postman in small towns is an important post of the rural system in so many ways that they are known to even write letters to help the illiterate. This image of postman in rural areas is very endearing to one and all and that spirit of rendering help is required to be continued.

POSTAL Department and the Telegraphic Department are all public servants who must also work with some conscience specially in cases like this and should not continue to litigate that they have blanket protection of immunity under the Indian Telegraphic Act. For the apparent deficiency in service and neglect of duty, the State Commission rightly allowed the appeal and awarded a small compensation. In view of the aforesaid discussion, there is no reason to interfere with the justified order of the State Commission and, accordingly, the revision petition is dismissed. The petitioners are directed to comply with the order of the State Commission within four weeks from the date of this order. R.P. dismissed.