Union of India vs Jugal Kishore

THIS appeal is directed against the order of the District Forum, Alwar dated 31.1.1995 whereby the complaint of the complainant has been allowed and he has been awarded Rs. 1,463/- as compensation for taxi charges and Rs. 1,000/- have been allowed as compensation for mental agony.

FACTS necessary to be noticed for the disposal of this appeal briefly stated are that the complainants sent a telegram on 28.9.1994 through respondent No. 4 to their son-in-law Trilok Chand and his wife Smt. Kanchan Devi informing them to come at Alwar but that telegram was not delivered to them upto 3.10.1994 and, therefore, they have to send them a Maruti car for which they have spent Rs. 1,463/- and they have claimed Rs. 10,000/- as compensation for mental agony. The respondents have come with a case that although the telegram was sent in time and was received by Mathura office but from there as the system became faulty, the telegram could not be communicated through telegraphic equipment and it had to be sent by post and, therefore, it was received by them on 3.10.1994 and thus there was no malafides in delivery of this telegram late and, therefore, they are not entitled to pay any compensation.

Mr. Asgar Khan appearing for the appellants has drawn our attention to Section 9 of the Indian Telegraph Act which reads as under : "9. Government not responsible for loss or damage-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."

According to this section he has submitted that unless there is any allegation of malafide negligence or fraudulent negligence on the part of any officer or official of the Telegraph Department no compensation is payable either by the officer or official concerned or by the Government for the late delivery of the telegram. He has drawn our attention to Rule 5 of the Indian Telegraph Rules which reads as under : "5. The accuracy of telegrams is not guaranteed, and all telegrams shall be deemed to be sent subject to acceptance by the sender of all risks arising from non-delivery, errors or delays."

He has submitted that for late delivery of the telegram the Telegraph Department as per Rule 5 also is not responsible for payment of any compensation.

MR. Ajay Tantiya appearing for the respondent has submitted that one of the appellants i.e., Jugal Kishore has expired. The complaint was jointly filed by Jugal Kishore, Bhuvnesh Chand and Smt. Kanchan Devi and that was about the late delivery of a telegram and the consequences that ensued on account of the late delivery and thus there was a common cause of action. There were three complainants and the relief claimed by them are also the same and when MR. Ajay Tantiya represents the other two complainants to whom the cause of action still survives the death of Jugal Kishore will not affect the merits of the case and, therefore, we are dis-inclined to stay the proceedings for bringing his legal heirs on record. His son is already there on record as complainant No. 2. MR. Ajay Tantiya has submitted that there has been a negligence on the part of the Telegraph Department and, therefore, it should be treated as deficiency in service. If the complainants knew that they not have chosen to send the telegram but would have chosen another mode to call their relatives and, therefore, it is definitely a case of deficiency in service for which Telegraph Department should be held responsible. We have bestowed our most thoughtful consideration to the rival submissions made at the Bar. The learned Counsel of the appellants drew our attention to Section 9 of the Indian Telegraph Act which categorically provides that the Government or the officials of the Telegraph Department are not responsible for late delivery of the telegram unless it is alleged and proved that the cause of delay was malicious or fraudulent negligence. In this case no allegation of malice or fraud has been made in the complaint against any officer or official of the Telegraph Department and, therefore, when there is no such allegation the Telegraph Department or the Govt. of India cannot be saddled with payment of any compensation for late delivery of the telegram. In this respect we are fortified in our view by a judgment rendered by Hon''ble the National Commission in Union of India & Ors. v. Tejbhan, reported in I (1996) CPJ 237 (NC), wherein the Hon''ble National Commission has held as under : "Section 9 of the Telegraph Act, 1885 clearly lays down that the petitioners herein are not responsible to make any payment of any compensation or loss, damage or injury as a result of not transmitting, not distributing of any telegram or delay in its transmitting or distribution or for any fault or mistake. The liability is only if the complainant proves that the negligence on the part of the Government or its officials was with malafide intention or in collusion with somebody. The complainant has filed only his own affidavit whereas affidavits of both the Telegram Delivery Men have been filed by the petitioners herein. The complainant did not state any facts relating to the negligence of the Department with malafide intention or any collusion with somebody. Unless it was established that the delay in delivery of the telegram was a mischievous act or there was any malafide on the part of the Department, there was no liability of the petitioners herein. This Commission has taken consistent view in such matters that the Government is not liable to make payment of compensation arising or resulting from any failure of service affecting transmission or delay in delivery of telegram unless it is established that there was malafide intention or collusion. The State Commission has thus exercised jurisdiction with material illegality in reversing the well-considered decision of the District Forum."

In view of this authority, unless it is established that delay in delivery of telegram was mischievous act or there was any malafides on the part of the Department, there was no liability of the appellants/non-petitioners to pay compensation. Our attention has been drawn to an authority of the Tamilnadu State Consumer Disputes Redressal Commission, Chennai rendered in Asstt. Superintendent of Telegraph Traffic v. Sakthivel, reported in I (1999) CPJ 382, wherein the Tamilnadu State Commission has held that in case of non-delivery or delay in delivery ipso facto does not entitled the complainant to any compensation. In this respect reliance has been placed on Rule 5 of the Indian Telegraph Rules. It has further held that a telegram shall be deemed to be sent subject to the acceptance by the sender of all risks arising for non-delivery, errors or delays. It has, therefore, held that no question of payment of compensation for delay in delivery of telegram has arisen in that case. In rendering this judgment the Tamilnadu State Commission has also drawn strength from the aforesaid decision of the National Commission rendered in Tejbhan''s case quoted (supra). Although we are of the view that Rule 5 may not be exactly applicable to the facts of the present case but Section 9 of the Indian Telegraph Act is on all fours so far as this dispute is concerned. Thus if there is no allegation of malafide or fraud in establishing negligence the compensation is not payable in view of the provisions of Section 9 of the Indian Telegraph Act and the decision rendered by the Hon''ble National Commission quoted supra.

WE are firmly of the view that the District Forum has erred in allowing compensation to the complainant for late delivery of the telegram. The appeal is, therefore, allowed. The order of the District Forum, Alwar dated 31.1.1995 is set aside. The costs of the appeal will be easy. Appeal allowed.