SUB-POST MASTER vs MANI MASILAMANIACHARY

THE opposite party appeals.

THE complainant''s case was as follows : A telegram was sent to him on 12.1.94 from Thiruvannamalai intimating the death of one Mannatha Achary, the Sambandhi of the complainant. THE same was delivered to him only on 25.2.94. On the basis of this averment he formulated the following prayers: (1) to pay the complainant Rs. 1,500/- (Rupees one thousand five hundred only as damage for the inconvenience, mental agony suffered by the complainant due to the deficiency of service on the part of the opposite parties ; (2) to pay the cost of this complaint.

The District Forum after fully hearing the parties has directed the opposite parties to pay Rs. 1,000/- as compensation and in default to pay interest at 12% p.a. by order dated 17.11.95.

The main ground urged is that no liability exists for the Department in view of the bar embodied in Section 9 of the Indian Telegraph Act. Let us scan Section 9 of the Indian Telegraph Act which reads as follows : "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."

The first proposition is that the Government will not be responsible for a failure of any Telegraph Officer and the second one is that in case of such a failure the officer concerned will not be liable unless there is negligence, malice or fraud. The mechanism contemplated is as follows:-When a customer is not satisfied with the service rendered, the department has to prove on the failure of which officer the deficiency occurred, and further prove whether that failure was of negligent, malicious or fraudulent nature. The result of the enquiry should be intimated to the aggrieved consumer, so that he can implead the officer concerned and prove his guilt. But if the Department wants to shield the officer, it can itself compensate the aggrieved consumer. Any way the Department becomes liable when it does not bring to the knowledge of the aggrieved consumer the failure of any of its officer.

THE thrust of the section is not to ban any action against the department as the learned Counsel for the appellants would contend, but rather to say that the liability would rather attach to the officer concerned on the cases specified in the section. Looking at the issue from another angle, any wrong committed calls for a remedy. Section 9 is not a bar to remedy, it only indicates what would be the remedy in case of failure of an officer. But when no such failure is alleged, the remedy remains intact, and Section 9 is no shield. Section 9 is an exception to the principle, and it should be given a restrictive construction, and not be interpreted as a total ban or remedy, leaving the Department unassailable whatever the deficiencies in its service.

THE machinery under the Consumer Protection Act is not to act according to strict principles of civil law of rights and estoppel. Its duty is to find out whether there is any deficiency as defined in the Act and afford remedy as provided in the Act. As per the civil law, there is a remedy available before Civil Courts against erring officers and against the department when no failure of officer is alleged. THE Consumer Protection Act has created an additional remedy of a general nature, which would become available whenever there is a deficiency. Unless there is a clear bar under any statute, the machinery has to set things right. The case of the opposite parties was simply that the telegram was lost in transit without any allegation of failure of any officer. Therefore this is a loss which occurred without any failure of any officer. Such circumstance will not come within the ambit of the exoneration provision embodied in Section 9 of the Indian Telegraph Act. We are, therefore, not able to accept the contention raised by the learned Counsel for the appellants. Secondly, it was urged that there was no negligence proved in this case. That question does not arise since as explained above, it would arise only if any officer has been specifically shown to have been responsible for the delay and if his course of action has been proved. Therefore, this appeal does not have any merit whatsoever and is dismissed with costs of Rs. 500/- to the other party. Appeal dismissed with costs.