IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.D.Krishnappa<br /> B.A., L.L.B - President <br /> <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> <br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 364/08 DATED 30.01.2009<br /> <br /> ORDER<br /> <br /> Complainant N.Mallikarjuna Swamy, No.140/D, 4th Main, 22nd Cross, Vidyaranyapuram, Mysore-8.<br /> (INPERSON)<br /> <br /> Vs. <br /> Opposite Parties 1. Sub-Divisional Engineer, Central Telegraph Office, Mysore-24.<br /> 2. The General Manager, B.S.N.L., Jayalakshmipuram, Mysore-12.<br /> 3. The Accountant General (A & E), Karnataka, Bangalore-1.<br /> (By Sri.V.Anantha Raju, Advocate for O.P.1 and 2)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 17.11.2008<br /> Date of appearance of O.P. : 15.12.2008<br /> Date of order : 30.01.2009<br /> Duration of Proceeding : 1 ½ MONTHS<br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> <br /> Sri.D.Krishnappa,<br /> President<br /> <br /> 1. The grievance of the complainant in brief is, that he had sent two telegrams on 10.06.2008 and 11.07.2008 to the third opposite party through first opposite party with a request to the third opposite party to send pension revised order to the District Treasury, Mysore. He had on the same day also sent confirmation letter to the third opposite party. That he on 08.07.2008 visited the office of the third opposite party to ascertain the position of the telegram and learnt the first telegram was not delivered to them. He again on 22.07.2008 visited the office of the third opposite party and found that a second telegram was also not delivered to them. Then he sent a letter to the first opposite party to prove the delivery of the telegrams, but the first opposite party informed him on 23.07.2008 stating that they cannot pursue delivery of first telegram as the complaint was belated one and regarding second telegram informed him that they are enquiring into and inform later, but thereafter no reply was given. Therefore, has prayed for compensation for non-delivery of those two telegrams by awarding Rs.2,000/- with interest at 18% p.a., and refund of telegram charges and to award cost.<br /> <br /> 2. The first and second opposite parties have appeared through their advocate and filed version. The third opposite party has not been notified. The first and second opposite parties in their version have contended that the complainant has not availed the remedy available for referring his grievance to Adalth and therefore the complaint is not maintainable. The first and second opposite parties have further contended that the telegrams were accepted subject to the conditions as found in Indian Telegraph Act and Rules and under section 9 of Indian Telegraph Act and stated that they have not accepted any liability arising out of loss, delay or non-delivery etc., and stated that no liability is fashioned to them and therefore the complaint is not maintainable and the same is filed for wrongful gain and thereby denying their liability have prayed for dismissal of the complaint.<br /> <br /> 3. In the course of enquiry into the complaint, the complainant and one Rangaswamy, A.G.M of opposite parties have filed their affidavit evidence reiterating what they have stated in their respective complaint and version. The complainant has produced a copy of the letter he had addressed to the first opposite party. The first and second opposite parties have produced message delivery receipt copies, and copies of letters addressed to the first opposite party by his superior. The complainant who is prosecuting the complaint in person has filed his written arguments. Heard the counsel for first and second opposite parties and perused the records.<br /> <br /> 4. On consideration of above materials, following points for determination arise.<br /> Whether the complainant proves that non-delivery of two telegrams referred to in the complaint by first and second opposite parties amounts to deficiency in their service and therefore are liable to pay compensation to him? <br /> <br /> 5. Our findings is as under:-<br /> In the Negative<br /> <br /> REASONS<br /> <br /> 6. The claim of the complainant that he had sent two telegrams through the first opposite party to third opposite party on 10.06.2008 and 11.07.2008 is not in dispute. But, the complainant has come up with his grievance that on enquiry with third opposite party, he found that both the telegrams were not delivered to the third opposite party and therefore contended that the first and second opposite parties have caused deficiency in their service. The complainant further to his grievance stated to had sent a letter to first opposite party asking them as to what happened to the telegrams, he had sent, for which the first opposite party addressed a letter to the complainant informing that the complaint is filed regarding non-delivery of the first telegram after expiry of 30 days, as such it cannot be enquired into and stated so far as the second telegram is concerned is under investigation and complainant will be informed later. Thereafter, it is found that S.D.E.(G) CTO, Bangalore addressed a letter to Senior SDE, CTO, Mysore informing that telegram No.S3 dated 10.06.2008 addressed to Bangalore was received by them, which was allotted to C No.4 and the message has been delivered to the address on the same day as per the office records. The first and second opposite parties have also produced message delivery receipt copy, in which it is found that the first telegram message shown to have been delivered to the addressee. Similarly, the opposite parties have produced copy of another letter addressed to the Senior SDE, CTO, Mysore informing that the second telegram No.S4 dated 11.07.2008 destined to Bangalore was received by them was allotted to C-12 through delivery Man No.FC-4 and message found to have been delivered on the same day as per their office records. These official records maintained by the first and second opposite parties disclose delivery of message of telegram to the addressee. But, the complainant has contended to the contrary contending as if those messages were not delivered to third opposite party.<br /> <br /> 7. The learned counsel appearing for the first and second opposite parties in the course of arguments submitted that Rule 9 of Indian Telegraph Rules 1885 fixes no liability to the telegram department in the event of loss or damage caused to the telegram and therefore submitted that the opposite parties are not liable to compensate the complainant so far as non-delivery of the telegram or its message. It is found that Rule 9 of Indian Telegraph Rules 1885 says that the Government shall not be responsible for any loss or damage, which may occur in consequences of any telegraph officer failing in hisduty 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. Further Rule 5 of Telegraph Rules 1951 reads as under:-<br /> “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”.<br /> Further the Hon’ble National Commission in its decision reported in 1996 I CPR page 88 between Union of India and another Vs. Tejbhan by referring to section 9 of Telegraph Act 1885 has held as under:-<br /> “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 and unless it was established that delay in delivery of the telegram was mischievous act or there was any malafides on the part of the department there was no liability further held that the 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.” <br /> On perusal of the decision of the Hon’ble National Commission it is manifest that in the case on hand complainant has not attributed to any malafide or collusion to the Opposite parties for having not delivered the telegram. <br /> Therefore, in the absence of such contentions raised in the complaint and proof, the Opposite parties cannot be held as liable to compensate for non-delivery of telegrams, as such the complainant in our view is not entitled for the relief.<br /> 8. With this, we are constrained to hold that the complaint is liable to be dismissed and thus, we pass the following order:- <br /> ORDER<br /> <br /> 1. The Complaint is dismissed.<br /> 2. Parties to bear their own costs.<br /> 3. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 30th January 2009)<br /> <br /> <br /> <br /> <br /> <br /> (D.Krishnappa) <br /> President <br /> <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />