SENIOR SUPERINTENDENT, TELEGRAPH TRAFFIC-/ vs Satya Narayan

-THE opposite party before the District Forum, Ajmer has filed this appeal against the order dated 13-5-1991 passed by the District Forum, Ajmer in Complaint Case No. 743/1990. By the impugned order the appellant was directed to pay Rs. 2,000/- as compensation to the complainant-respondent within a period of one month. THE complainant alleged in the complaint filed under Sec. 12 of the Consumer Protection Act, 1986 ("the Act" herein) that his brother-in-law sent an urgent telegram from Lucknow (Uttar Pradesh) on 21-8-1990 informing him that the Law Examination is on 24th. THE matter written in the telegram was this: "Law Examination twenty fourth August". THE aforesaid telegram was delivered to the complainant on 5-9- 1990. He contacted the Telegraph Department. He was told that a second message was called and in that twenty fourth August was written. He has stated that Law Examination on 24th had already been completed and the telegram was delivered to him on 5-9-1990 i.e. 15 days after the date of sending it and he was deprived of appearing at the Law Examination and he lost his one year. THE examination fee amounting to Rs. 450/- deposited by him had gone waste. He talked on phone on 5-9-1990 at Lucknow and he was told that examinations are over and he was told that a telegram was sent to him on 21-8-1990 and as to why he had not reached. He filed this complaint praying for the award of Rs. 5,534/-. He has claimed Rs. 5,000/- as compensation as he had lost his one year, Rs. 450/- deposited for examination fee, Rs. 50/- as phone charges and the amount paid for sending the telegram was also sought to be refunded. Rs. 25/- were claimed for expenses of the complaint. A copy of the telegram has been submitted.

VERSION of the case dated 30-10-1990 was filed. It was admitted that the telegram dated 21-8- 90 from Lucknow was received by the Ajmer office on 23-8-1990 which was not clear. There- upon the opposite party sent a service telegram on 23-8-1990 vide telegram No. T/15-30 for sending clear and correct address. As reply was not received on 25-8-1990 a reminder was sent. But no reply was received. Again on 27-8-1990 vide T/16- 30 dated 27-8-1990 service telegram was sent. Request to send the correct address contained in the telegram and also the subject matter. It was on 5-9-1990 that Lucknow office sent the teeing which was received on 5-9-90 at 16.32 hours and so it was delivered on 5-9- 90 at 18-15 and distributed at 22 hours. It was stated that the delay in delivering the telegram was caused on account of technical mistake and there was no negligence on the part of the opposite party. It was submitted that under Rule 6 of the Telegraph Rules, the complainant is not entitled to any compensation, and at the most he can be refunded the amount spent for sending the telegram. The opposite party submitted the pro forma blank form of the telegram as well as the copies of the telegrams which were sent to Lucknow. However, on 7-5-1991 an application was submitted raising a preliminary objection that the complainant is not a consumer within the meaning of Sec. 2(1) (d) (ii) of the Act. The District Forum after hearing the arguments passed the impugned order directing the opposite party-appellant to pay Rs. 2,000/- within one month from the date of the order. Rest of the claim of the complainant was dismissed. Aggrieved the Opposite party-appellant has filed this appeal. The District Forum held as under:- (1) That the complainant is a consumer, (2) that the opposite party-appellant is liable and he is not absolved from the responsibility merely on the ground that the computer was defective, (3) that Sec. 9 of the Indian Telegraph Act does not help the opposite party-appellant as the negligence of the opposite party-appellant is established. The District Forum awarded a sum of Rs. 2,000/- as compensation to the complainant as stated above.

Nobody appeared on behalf of the respondent. We heard Mr. U.D. Sharma, learned Counsel for the appellant. Mr. Sharma did not assail the finding of the District Forum when it held that complainant is a consumer. He even did not take the ground in the memo of appeal that for the reasons mentioned by the opposite party-appellant in its application dated 7-5-1991 the complainant is not a consumer.

We have examined the record and the order under appeal in the light of the submissions made by the learned Counsel for the appellant. Mr. U.D. Sharma vehemently argued that there has been no negligence on the part of the opposite party-appellant in delivering the telegram on 5-9-1990 for the reason that there was defect in the computer. He has also contended that no liability can be fastened on the opposite party-appellant under the Indian Telegraph Act, 1985. As regards the first contention it may be stated that the defense taken is that there was a technical disorder and so the telegram could not be delivered in time. It has been stated in para 3 of the version of the case that the telegram was received on 23-8-1990 which was not legible and nothing could be made out from the message. Therefore, a telegram was sent to Lucknow office asking it to send the correct address contained in the telegram. But no reply was received and, therefore, a reminder telegram was sent on 25-8-1990. Reply of the reminder telegram was not received and so another telegram was sent on 27-8-1990, and it was written that the address of the addressee and the subject matter may clearly be written. The telegram was received on 5-9-1990 at 16.32 and it was delivered on that very day i.e. 5.9.1990 at 18.15 and distributed at 22 hours. What was the technical disorder which caused delay in receiving the telegram on 5.9.1990 is at least not clear from the version of the case filed on behalf of the Opposite party. In the memo of appeal it was, however, written that the District Forum was not right in categorizing the computer defect as a case of negligence on the part of the appellant What was the computer mistake that has not been mentioned in the version of the case. What was mentioned in the version of the case was that the telegram received was not clear and nothing could be made out from the message. This telegram was given on 21-8-1990. Thereafter service telegrams were sent on 23-8-1990,25-8-1990 and 27-8-1990 by the opposite party at Lucknow Office for giving the correct address and the subject matter of the telegram The correct telegram was received on 5-9-1990 i.e. after 15 days from 21-8-90. The sender has paid charges for sending the telegram. It was expected from the opposite party to deliver the telegram to the addressee within a reasonable time. "Deficiency" has been defined in S. 2(1)(g) of the Act. It is as under :- "Deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service".

According to this deficiency any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or other any law or in pursuance of a contract or otherwise in relation to any service. "Service" has been defined under Sec. 2(1)(o) of the Act which is as under:- "Service" means service of any description which is made available to potential users and includes the provisions of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, entertainment amusement or the purveying (sic) of news or other information. But does not include the rendering of any service free of charge or under a contract of personal service."

"COMPLAINT" has been defined in Sec. 2(1(c) of the Act. Amongst others it means any allegation in writing made by a complainant that he service mentioned in the complaint suffers from deficiency. The message of the telegram was about the Law Examination on 24-8-1990 and it is clear from the narration of facts stated above that it was not delivered to the addressee in time and on account of the negligence, there was imperfection and shortcoming in the performance of the service by opposite party and the complainant could not appear at the examination because of the late receipt of the telegram i.e. after 15 days of the date. Sec. 9 of the Indian Telegraph Act, 1885 is as follows:- "9....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..."

Sec. 3 of the Act lays down that the provisions of the Act are in addition to and not in derogation of the provisions of any other law for the time being in force. The District Forum was right when it held that the opposite party could not absolve itself on the basis of Sec. 9 of the Act of 1885, for, it was negligent when it failed to deliver the telegram in time. We agree with the conclusion arrived at by the District Forum that there was deficiency in service rendered by the opposite party when it delivered the telegram after 15 days. Both the contentions made by the learned Counsel for the appellant are devoid of force. It is difficult for us to take a view different from the one taken by the District Forum in this regard.

THE District Forum has awarded a sum of Rs. 2,000/- as compensation for the injury or loss suffered by the complainant on account of the negligence of the opposite party. THE complainant has stated in the complaint that a sum of Rs. 450/- was paid as examination fee which had gone waste. THE opposite party has not controverted this. Nothing has been stated by the opposite party in the version of the case for the various sums claimed by the complainant except this that the complainant is not entitled to any compensation in accordance with Rule 6 of the Indian Telegraph Rules and he is only entitled to the refund of the amount paid for sending the telegram. In other words claim for compensation was denied. THE District Forum in the order under challenge has stated that on account of the deficiency in service by not delivering the telegram within the reasonable time there are mental suffering of the complainant. In a case like thus it is difficult of produce tangible evidence. It was observed by the National Commission in 1991, CSMR CAS 52 that where it is practically impossible to produce tangible evidence regarding the monetary loss, inconvenience, mental suffering etc. caused to the complainant it is the duty of the Redressal Forum to assess and determine what amount should be given for the inconvenience, mental agony etc. caused due to the negligence of the opposite party. Having regard to the nature of the case, we do not find it possible to say that the compensation awarded by the District Forum is excessive or unreasonable. In the circumstances of the case, the amount Rs, 2,000/- awarded as compensation, in our opinion, is just, fair and reasonable. THE finding of the District Forum in this regard is also affirmed. No other point survives for our consideration in the appeal. The appeal fails and it is hereby dismissed. As the respondent has not appeared, there will be no order as to costs. Appeal dismissed.