Shri Devanand Gehlot vs RAJASTHAN PATRIKA LTD

1.AFTER hearing the learned Counsel for the parties, the following order was passed on 20.12.89.

''THE complaint shall stand dismissed. THEre will be no order as to costs.'' It was recorded that reasons in support of the order will be recorded later on.

NOW , we proceed to set out the reasons. This complaint purporting to be under Sec. 12 of the Consumer Protection Act, 1986 ("the Act" herein) has been filed by Shri Devanand Gehlot, Advocate on July 24, 1989 against the Rajasthan Patrika Ltd. (opposite party no. 1), Shri Vijay Bhandari (Editor) and Shri Milap Kothari (Managing Editor) for the grant of Rs. 2 lacs as compensation.

THE complainant has alleged that opposite -party no. 1 is a registered newspaper under the Press and Registration of Books Act, 1867 ("the Act of 1867") and can only publish news in accordance with the provisions of the Act of 1867. Opposite -parties no. 2 and 3 are its editor and managing editor respectively and so they are responsible for the news published in it. In the Rajasthan Patrika dated 25.7.1987, the news under the head ''PRABHA TAAK NE GAHLOT SE ABHADRA VYAVAHAR NAH1N KIYA'' was published. The news is of 24.7.89. The material part of the news is alleged to be objectionable. The complainant has alleged that opposite -party, by publishing daily newspaper renders "service" as envisaged by Sec. 2(1)(o) of the Act and the complainant avails of those services. Para (C) of the complaint is as under: - (C) YAH KI APRARTHH RAJASTHAN RAJYA KA EK ATYANT TAKATWAR DAINIK PATRA HAI THATA USKI TAKAT SE SARKARI ADHIKARI BHI KHOF KHATE HAI TATHA USKEI VIRUDH UCHIT KANUNI KARYAWAHI KARNE SE DARTE HAI. DUSRI AUR DURVYAWHAHAR KARNE WALE SARKARI ADHIKARIOA KO APNE AHASAN KE TALE DABANE HATU UNKE PAKSH MAI GHOOTI KHABRE CHAPTE HAI. ISI SANDHARBH MAI APRARTHI NO. 1 NEI E.EX MAI CHAPA HAI TATHA PRARTHI KO BADNAM KIA HAI."

IT is said by the complainant that attention of the opposite -part for publishing false and baseless news which has brought him to disrepute was drawn vide letters Exs. 2, 3, 4, 5, 6 and 7 but efforts of the complainant were in vain. The complainant has alleged that on account of the "unfair trade policy" adopted by the opposite -party. he has been deprived of his livelihood as AAM ADMI does not recognize him as advocate and the complainant has been suffering financial crisis since July 1987. He has prayed that compensation to the tune of Rs. 2 lacs maybe awarded as he has suffered mentally, socially and financially on account of the unfair trade practice, false and misleading news published by the oppositeparty.

THE complaint was resisted by the opposite -parties by filing a detailed version of the case dated 16.10.89. Preliminary objections regarding the maintainability of the complaint were raised. The main preliminary objection is that the complainant is not a consumer and that opposite -party has neither sold any "goods" nor it renders any "service" to him. The averments made in the complaint were strongly refuted. It was submitted that the news item in question was published in good faith and there was no motive to defame or malign the complainant. The complainant was informed to send his statement in connection with the news item to the opposite -party. A letter dated 6.10.87 was sent by the complainant to opposite -party No. 2, which contained his statement which he wanted to be published in the newspaper. It was not possible to publish that in the form in which it was sent for no data was made available in support of it. The complainant was told to have conference with the officers of the opposite -parties for preparing matter for publication. The matter was prepared by the opposite -parties for publication. It was shown to the complainant but he was insisting that the statement contained in the letter dated 6.10.87 should be published. It was mentioned that in the statement which was sent by the complainant, nothing was mentioned to show that facts stated in the news item in question were wrong. Averments with regard to the behaviour of Smt. Prabha Tak made by the complainant were referred and it was submitted that on investigation by the office correspondent, they were found to be wrong. The claim for compensation on the grounds mentioned by the complainant was denied. The following documents have been marked as Exhibits which have been produced by the complainant: 1. Letter and Bills of Raja News Paper Ex. 1 2. News Items dated 24.7.87 - published in the News paper dt. 25.7.87 Ex. 2 3. Letter of the Secretary, Rajasthan High Court Advocates Association dated 29.7.87 Ex. 3 4. Notice of the complainant to the opposite -parties no. 2 and 3 dated nil Ex. 4 5. Reply of opposite -party no. 2 dated 10.9.87 Ex. 5 6. Letter of the complainant dated 6.10.87 to the Editor Ex.6 7. Phonogram by the complainant Ex.7 8. Phonogram by the complainant Ex.8 The opposite parties have produced the following documents with the version of the case: 1. Order of the Rajasthan High Court dated 9.1.89 passed in Cr. Misc. Bail Application No. 1329. 2. Order of the Rajasthan High Court dated 16.1.89 regarding dropping of contempt proceedings against the complainant and one Om Prakash. 3. Affidavit of the complainant. 4. Reply to the contempt notice filed by the complainant.

THE complainant has examined himself as a witness in support of the complaint. No other witness has been produced by him. The opposite -parties have not produced any evidence in rebuttal.

WE have heard Shri Bhikam Chand Parakash, Advocate for the complainant and Shri S.K. Gupta, Advocate for the opposite -parties and considered the record with requisite care. In this case, the claim for compensation is barred by the law of Limitation. The provisions of the Act are in addition to and not in derogation of the provision of any other law for the time being in force. No period of limitation is prescribed under the Act for filing the complainant under Sec. 12 of the Act. Material portion of Sec. 29 for the present purpose is as under: - ''29. Savings. (1) Nothing in this Act shall affect Section 25 of the Indian Contract Act. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local ¦ ¦ ¦ ¦. (3) (3) ¦ ¦ ¦ ¦ ¦. (4) (4) ¦ ¦ ¦ ¦ ¦''

THE case of complainant is that by publication of news item Ex. 2 particularly portions marked A to B and C to D, wrong has been done to the reputation of the complainant. "Defamation" is the wrong done by one person to the reputation of another by words, signs or visible representation. A libel is a particular form of defamation. It is a defamatory statement in writing or otherwise recorded (e.g. by printing, typing etc.) in such a way as to be of more or less permanence so that after one act of publication, it still retains its capacity of expressing the defamatory meaning by subsequent acts of publication. A statement is not actionable as a libel unless it is made and published.

ART . 75 of the Schedule appended to the Limitation Act, 1963 deals with suit for compensation for libel. It is as follows: - ''75. For compensation for libel One year When the libel is published.'' The starting point of limitation under the above is the date on which the alleged libel is published.

The news item Ex. 2 was published in the Daily Newspaper dated 25.7.87. News is that of 24.7.87. The complaint was filed on 24.7.89, i.e. after two years of the date of the news. The period of limitation under the above article is one year to be counted from the date when the news containing libel was published. The complainant could not even file a civil suit. Thus, the claim for compensation is barred under the Law of Limitation.

NOW , the next question that we propose to examine is whether the complainant is a consumer and he has hired services of the opposite -parties for consideration.

THE definition of consumer as mentioned in Sec. 2(1)(d) of the Act, is as follows: - ''(d) ''consumer'' means any person, who, (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised or under any system of deferred payment when such use is made with the approval of such person but does not include a person who obtains such goods for resale or for any commercial purpose; or (ii) hires any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person." "Service" has been defined in Sec. 2(1)(o) of the Act, as under: - ''(o) ''service'' means service of any description which is made available to potential users and includes the provision 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 of news or other information, but dees not include the rendering of any service free of charge or under a contract of personal service.''

It, inter alia, includes the provisions of facilities in connection with the purveying of news or information. "Unfair trade practice" has been defined in Sec. 2(1)(r) of the Act.

IT may be mentioned that though the complaint is founded on "unfair trade practice" learned Counsel for the complainant could not succeed in satisfying us that the opposite parties have adopted "unfair trade practices" as envisaged by Sec. 36A of the Monopolies and Restrictive Trade Practices Act, 1969 ("the Act of 1969") in publishing the news item in question. The definition of "service" given in Sec. 2(r) of the Act of 1969 is the very same which is mentioned in Sec. 2(1)(o) of the Act. Learned Counsel for the complainant, however. relies on the words "purveying of news or information" used in Sec. 2(1)(o) of the Act "Purvey" means ''provide'', ''supply'' (articles of food) as one''s business, makes provision, act as purveyor (for person army etc.). These words used in the definition of service mean supply of news of information.

THE complainant has stated that he is a subscriber of the newspaper and utilises its news services. He did not produce the letter and bills for the months of June and July, 1987 with the complaint. They were, however, filed at the time of his statement and marked Ex. 1. The bills have not been proved. By subscribing or purchasing a newspaper, he cannot be said to have hired the services of the newspaper in question. Purveying of news is not associated and connected with the newspaper. Two objects mentioned in para (c) of the complaint cannot be called unfair trade practice. A complaint inter alia, means any allegation in writing made by a complainant that the services mentioned in the complaint suffer from deficiency in any respect. For the alleged objectionable matter in the news item pertaining to the complainant, the complaint, in our opinion, under the Act is misconceived and it should be dismissed on this count also. Learned Counsel for the parties addressed us on the merits of the case and so we proceed to examine them. The objectionable matter A to B and C to D have been produced hereinabove. The question is whether the news item was published in good faith or to defame or malign him. In reply to the notice Ex. 4, opposite party No. 2 wrote, amongst others, to the complainant that if any incorrect statement has been published, he is prepared to publish any contradiction or statement that the complainant may like to issue in this behalf and that while publishing the said news item there was absolutely no intention to either defame or malign him. The complainant vide letter Ex. 6 dated 6.10.87 wrote to the opposite -party No. 2 to publish the statement contained in that letter. We have read that. There is no denial or contradiction of the objectionable matter. It has not been controverted in the proposed statement. The complainant wanted to get published the matter which has nothing to do with the objectionable matters extracted hereinabove. A perusal of the statement of the complainant Shri Devanand Gehlot as C.W. 1 shows that most of the facts relating to Rajni Travels, Taxi Car, membership of the Association stated therein are not wrong. The complainant appeared as a witness in the Court of Smt. Prabha Tak and not as an advocate is also stated in the news item which is not in dispute. All this has been stated by us to show that he was not aggrieved by the words "WAKALAT KA PESHA NA KAR". These words are also to be read in the context in which they are used. The complainant has admitted that opposite party No. 1 mentioned him as advocate after Ex.2 in 1989. On the basis of these facts, we are called upon to determine whether the complainant is entitled to any compensation for any loss or injury suffered by him due to the negligence of the opposite -parties. Sec. 14(1)(d) of the Act has been considered by the National Commission in various decisions. It has been laid down that the award of compensation by the forums established under the Act has to be made only on well recognised legal principles governing the quantification of damages or compensation and not arbitrarily. Compensation can be awarded to a consumer only in respect of any loss or injury found to have been suffered by him due to the negligence of the opposite -party. It is of the essence of Sec. 14(1)(d) that the lessor injury for which compensation is to be adjudged and awarded should be found to have been caused by the negligence of the opposite party. The complainant has to establish that there was negligence of the opposite party and that as a consequence thereof loss or injury was suffered by him. It is only in such event that award of compensation would be warranted under Sec. 14(1)(d) of the Act. Further, the compensation has to be quantified on a rational basis on a consideration of materials produced before the adjudicating forum showing the extent of injury suffered and the manner in which and the extent to which monetary loss has been caused thereby to the complainant

IN the complaint, an amount of Rs. 2 lacs has been claimed as compensation on account of "MANSIK SAMAJIK WA PRARTHIK CHATI". The details of the compensation have not been mentioned. The complainant in his deposition has stated that on account of the publishing of the news in question, he suffered social, financial and mental harassment for which he has assessed Rs. 2 lacs as compensation. Rs. 5,000/ - have been claimed on account of loss of professional income, and Rs. 20,000/ - were spent by him on diet, medicines and fees in connection with his treatment. These two details were elicited in the cross -examination. The complainant is not a tax payer. He has not examined Shri Neel Kamal Bohra, Advocate, who is said to be his senior and used to pay Rs. 3,000/ - p.m. The complainant, though maintains accounts of fees and expenses, but they have not been produced. The entries pertaining to the payment of Rs. 3,000/ - p.m. by the complainant''s senior which are with the complainant have not been produced. The Diary which is said to be maintained regularly has also not been produced. Champalal Bhati, Inder Singh Tak, Narpat Singh Rathore, Poosa Ram etc. who told him that they do not want to engage him after the publication of the news in question have also not been produced. The best evidence regarding professional income and its subsequent loss has been withheld by the complainant. The doctor who treated the complainant, prescriptions, bills for the purchase of medicines etc. have also not been produced to show that he fell ill on account of the publication of the news in question. The statement of the complainant is not at all cogent and convincing. We are of opinion that the complainant has failed to substantiate his claim for compensation by sufficient evidence. He is not entitled to any compensation.

FOR the reasons stated hereinabove, our conclusions are: 1 that the claim for compensation is barred under the Law of Limitation; 2 that the complaint is misconceived under the Act; and 3 that the complainant has failed to substantiate his claim for compensation and so he is not entitled to any compensation.

The complaint shall stand dismissed. There will be no order as to costs. Complaint dismissed.