TELEGRAPH MASTER (O) BELGAUM vs E.F. D'SILVA

THESE two appeals arise out of an order passed by the District Forum, Belgaum in complaint No. 12/1990 on the file. They arise in this way:-

MR. E.F. D''Silva has a son by name MR. Nivard Anthoni D''Silva who had applied for the post of Aerodrome Officer in National Air Port Authority. He took the written test and appeared for the interview. He was selected and appointed to that post by an order dated 1.11.1989 He was to report for duty on 27.11.1989 at Allahabad. Exhibit P1 was received by MR. E.F. D''Silva on 6.11.1989 In the meantime, Nivard Anthoni D''Silva had joined the M.B.A. Course in Birla Institute at Ranchi. MR. E.F. D''Silva sent a telegram on 8.11.1989 as per Exhibit P3 asking his son to return immediately with original certificates after taking 10 days leave and stating that he may have to report at Allahabad on 23.11.1989. The said Telegram was tendered in the Telegraph Office at Tilakwadi, Belgaum. But the said Telegram was delivered to Nivard Anthoni D''Silva on 25.11.1989. So it was not possible for him to collect all the documents, undergo medical examination and report for duty at Allahabad on 27.11.1989. Hence. MR. E.F. D''Silva filed a complaint before the District Forum, Belgaum against the Telegraph Master, Tilakwadi and Divisional Officer, Tele- graph Traffic, Belgaum for compensation of Rs. 99,900/- alleging that due to the negligence of the Department in causing delay in delivery of the telegram, his son had lost a golden opportunity of joining the Government service as Aerodrome Officer The complaint was resisted by the Telegraph Department by contending inter alia, that the provisions of the Consumer Protection Act, 1986 (hereinafter referred to as the ''Act'') are not applicable in view of Section 7(b) of Indian Telegraph Act regarding arbitration; that the complainant is not a consumer within the meaning of Section 2(1)(d) of the Act; that the complainant and his son are only to be blamed for their negligence in that the complainant''s son failed to furnish his address at Ranchi to National Airport Authority; that he could have kept all the documents with him ready and should not have left any document at Belgaum; that the complainant could have contacted his son at Ranchi when he did not receive a reply telegram from his son within a week and that the complainant''s son could have travelled from Ranchi to Allahabad and reported for duty on the 27th; that as the Telegram had to pass through several Telegraph Offices, the delay is inevitable and that the amount of compensation claimed is speculative.

The complainant gave evidence as PW1 and produced Exhibits P1 to P10. DW1 was examined on behalf of the Respondents and Exhibits D1 to D6 were produced. On the said material, the district Forum reached the conclusion that the Telegraph Department was negligent in delivering the telegram to the complainant''s son as late as on 25.11.1989 and awarded Rs. 10,000/- as compensation together with interest at the rate of 12% per annum from the date of complaint till the date of payment and costs of Rs. 500/-. Being aggrieved by the said order, the Respondents have filed Appeal No. 29/1990 and the Complainant has filed Appeal No. 33/1990 for enhancement of the compensation.

AS both the appeals arise out of the same order they were heard together and this order will dispose of both the Appeals. Mr. V.P. Kulakarni, learned Counsel for the Telegraph Department urged that in view of Rule 5, the Department cannot be held responsible for paying compensation. He also urged that the compensation awarded by the District Forum is excessive.

THE learned Counsel for the complainant urged that the compensation awarded by the District Forum is low and the same may be enhanced as the Complainant''s son has lost a good opportunity of getting a job on account of the negligence of the Department It is not disputed that the complainant booked a telegram as per Exhibit P3 to be sent to his son at Ranchi on 8.11.1989 and that it was delivered to his son at Ranchi on 25.11.1989. It is admitted by DW1 that the Telegram sent from Tilakwadi to Ranchi requires about 48 hours to reach the addressee. According to DW1, the message was mutilated while it was sent from Patna to Ranchi but the said mutilated message was not placed on record. Even if it was mutilated, it was not difficult for Telegraph Officer at Ranchi to get a clarification from Patna or Tilakwadi within a short time. Anyway, it does not require 17 days to get that clarification. Hence, we have no hesitation in holding that the Department has been negligent in delaying the delivery of Telegram to the complain- ant''s son. According to Rule 5, the Government is not liable to make compensation for any loss, injury or damage arising or resulting from any failure of service effecting transmission of delivery of the telegram. In this case, it is neither pleaded nor proved that there was failure of service effecting the transmission or delivery of the telegram. Hence Rule 5 is of no avail to the Department in avoiding its responsibility for the delay. This brings us to the question of compensation. It is for the complainant to establish the amount of loss or injury suffered by his son. He has no doubt, stated that his son lost an opportunity of joining Government service as Air Port Officer due to the delay caused by the Telegraph Department in delivering the telegram sent by him to his son. The complainant has not examined his son to show whether he wanted to accept that appointment and join that job, particularly when he had joined the M.B.A. Course. If he completes his M.B.A. Course in the Birla Institute, he may get a better job as admitted by the complainant (PW1). From Exhibit P1, it is clear that the complainant''s son would have got Rs. 2,000/- and other allowances. But PW1 has admitted that after completing M.B.A., his son would get a job of the salary of Rs. 2,200/- and other allowances. In view of the said admission, it cannot be said that the complainant and his son have suffered any pecuniary loss. PW1 has also admitted that his son could have left Ranchi on 25th and reached Allahabad on 26th. Under the circumstances, PW1''s son could easily have gone to Allahabad after receiving the Telegram if he had a mind to join and reported for duty and sought for time to produce the document pleading these circumstances. He has not done that also.

UNDER the circumstances, we are of the view that the complainant is entitled to nominal compensation for the delay caused by the Department in delivering the telegram and thus depriving his son of joining the said post.

REGARD being had to all the circumstances, we think a compensation of Rs. 5,000/- is proper. In the result. Appeal No. 29/90 is partly allowed and the compensation is reduced to Rs. 5,000/- from Rs. 10,000/-. The order of the District Forum regarding interest and costs is maintained. Appeal No. 33/90 is dismissed. Parties to bear their own costs in these appeals. If the Department has deposited the amount as ordered by the District Forum, the excess amount shall be refunded to the Department Appeal partly allowed.