THE CONSUMER DISPUTES REDRESSAL FORUM, KOZHIKODE.

C.C.357/2011

Dated this the 27^th day of July, 2018

(Smt. Rose Jose, B.Sc, LLB.              :  President)

                                                                        Smt.Beena Joseph, M.A                    :  Member

                                                                        Sri. Joseph Mathew, M.A., L.L.B.    :  Member

​

ORDER

Present: Rose Jose, President:             

This petition is filed by the petitioners under Section 12 of Consumer Protection Act, 1986 seeking compensation from the opposite parties for the delay in delivering a telegram to the 2^nd petitioner sent by UPSC, New Delhi for joining NDA123 Course at National Defence Academy, Pune, which ruined the prospects and ambitions of the 2^nd petitioner.

The 1^st petitioner is the father of the 2^nd petitioner. Their case in brief is that, the 2^nd petitioner had successfully completed all the examinations and tests for the NDA123 Course and declared fit for the course at the National Defence Academy Khadukawalsa, Pune. For that they had spent huge amount, time and energy for attending examinations and tests conducted at various places. The 2^nd petitioner was anticipating joining instructions for the course from the NDA Pune. But the telegram sent on 08/01/2010 intimating the 2^nd petitioner to report NDA, Pune on 13/01/2010 was delivered to him only on 13/01/2010 afternoon. The said telegram was received at the Central Telegraph Office, Calicut on 09/01/2010 at 11.32 hrs. The message contained in the said telegram specifically stated that the date of reporting at NDA Pune for joining the NDA123 Course for training as an Army Cadet is 13/01/2010. Due to the undue delay in delivering the telegram, the valuable opportunity of the 2^nd petitioner to join the coveted course for which they had expended considerable labour, time, efforts and much money were lost. Since the opposite parties functioning as a monopoly as far as telegram service are concerned, any delay, default or negligence on their part amounts to deficiency in service on their side.

Thereupon the 1^st petitioner had made a complaint before the 2^nd opposite party on 15/01/2010 stating all the facts and the loss and damages sustained by them due to the delay in delivering the telegram and requesting to redress their grievance and to make good their losses, but to that letter the 2^nd opposite party replied on 20/01/2010 stating that the complaint was investigated and it was claimed that there was no lapse or delay on the part of the BSNL in the delivery process of the telegram addressed to the 2^nd petitioner. Though the 1^st and 2^nd petitioners had made several complaints before the opposite parties with regard to the delay in delivering the telegram, the opposite parties were not ready to redress the grievances of the petitioners till date. Though the 1^st petitioner had submitted application before the PIO of 5^th opposite party under RTI Act on 25/10/2010 to disclose the name and address of the official who had handed over the cover containing the telegram from CTO to the postal department, he received a reply dated 19/11/2010 stating that name and address of the officials on duty and handed the telegram on 09/01/2010 is not public interest and the entire actions and executions were in tune to the Departmental Orders and instructions and hence under Section 8(1)(j) of Right to Information Act 2005, the information could not be furnished. The petitioner alleged that the department was trying to cover up the lapses, negligence, delay and default on the part of their officials and so the department is liable to compensate them for the losses due to th3e act of their officials. The act of the opposite parties amounts to deficiency in service on their part and due to the said act of the opposite parties, all the efforts taken and the amounts spent by them were rendered a complete failure and waste and had ruined the prospects and ambitions of the 2^nd petitioner. The 2^nd petitioner lost his chance to join in NDA123 Course and this caused much mental agony and other hardships to them apart from the huge financial loss sustained to them. Hence this petition seeking reliefs.

The opposite parties No. 1, 2 and 5 had filed a joint version stating that a complaint under the Consumer Protection Act will not lie against the BSNL in view of the provisions of Section 7 B of Indian Telegraph Act. It is admitted that the telegram was booked from Delhi on 08/01/2010 and it was received at Central Telegraph Office, Kozhikode on 09/01/02010 but it contended that since there was no telegraph circuit existing between the CTO Kozhikode and the station of the addressee, the other alternative available to the 5^th opposite party as per rules was to send it through post as a letter. So immediately on receipt of the telegram the staff of the 5^th opposite party  made necessary arrangements to send the said telegram as a letter and handed over to the Head Post Office, Calicut on 09/01/2010 itself but it was delivered to the 2^nd petitioner only on 13/01/2010. The delay occurred on the part of the postal authorities is to be explained by them. It is stated that, wherever there is no telegraph circuit existing/operating, the BSNL telegraph office is authorized to resort to the posting of telegram Under Posting Certificate (UPC) direct to the addressee instead of routing to CO’s under the jurisdiction by invoking ITR-84, 117, 121 and 122 but unfortunately 09/01/2010 happened to be a Saturday. The delivery boy attached to the Head Post Office, Calicut collected the postal articles from the CTO at noon on 09/01/2010. Once the postal articles are handed over to the postal authorities, it is their duty to see that the articles are delivered to the addressees in time without delay. In this case there was absolutely no delay at all on the part of the CTO, Calicut.

They further contended that, the opposite parties No. 3 and 4 are not coming under the control of BSNL. They are separate entities. It is stated that there is no rule or provisions of law which mandate BSNL to deliver a telegram within a prescribed time limit. When the telegram is sent to the areas where receiving centres are not in existence the telegram will be handed over to the Postal Department and they have to consider it as a letter and ser5ve the same. Moreover the charges collected was for sending the telegram under existing facilities. No extra amount was collected from the sender for sending the telegram either through speed post or through any other urgent modes of transaction from Kozhikode. The letters send by the petitioners are properly replied stating true and correct facts. The 5^th opposite party had taken all necessary steps which is available and sent the same through post.’

It is further contended that, if at all any negligence had happened it was on the part of the UPSC. They could have send the intimation sufficiently early especially when they knew that the information is to be send to a person residing in a remote village. In the present day world, when modern facilities like internet, SMS and telephone facilities are available, why the UPSC had not resorted to such modes in sending the intimation or why they have not send the intimation through speed post etc. were known only to them and it has to be explained by them also. So it is for the petitioners to take steps against UPSC and to agitate the matter before the UPSC and to seek reliefs against UPSC. There is absolutely no negligence or deficiency in service on their part as alleged. If any loss or damages has been occurred to the petitioner, it was not due to the negligence or fraudulent acts of the opposite parties and petitioners are not eligible for any reliefs sough for and prayed to dismiss the petition with cost to them.

The opposite parties No. 3 and 4 also filed a combined version stating that all of them being officers under the Union of India and so Union of India is a necessary party in this petition and since petitioners has not impleaded them in the opposite party array the petition is bad for non-joinder of necessary party and hence to be dismissed. It is also contended that disputed matter is in connection with Telegram authorities only and they have nothing to do with it and the petitioner had unnecessarily dragged them into this petition. It is stated that a complaint was referred by the petitioners on 27/01/2010 to the 4^th opposite party alleging the dispute and a detailed enquiry was conducted in this regard. Enquiries revealed that the telegram was received at CTO Calicut at 11.32 hrs on 09/01/2010. Instead of making their own arrangements for delivering the telegram, the CTO authorities took the option of further transmission of the telegram by ordinary post from Calicut to the destination Kollam-Koyilandy. Postal articles were being collected by a pick-up boy employed in the Business Post Centre of Calicut Head Post Office. There was no indication on the cover to the effect that it contained a telegram. Since they are unaware of the contents of the cover, they could not make any special arrangements for speed delivery of the letter to the addressee. Even though they are not legally bound to make any such special arrangements, if there was any indication on the cover regarding its contents, they could have make some arrangements for the speedy delivery of the articles.

It is further contended that, since all the 15 articles collected from the CTO were ordinary letters, these are dispatched as per the normal channel. But the time the pickup boy returned to the post office after collecting mails from CTO, mails of the day had already been dispatched. In such cases mails from the business post centre would be send only on the next day. The next day ie. 10/01/2010 was a Sunday. So the letter collected from the CTO were dispatched to the destination post office Kollam, Koyilandy on 13/01/2010 and was delivered to the 2^nd petitioner on the same day itself. So there was no delay in delivering the letter to the petitioner on their side. The letter has been delivered to the addressee within 48 hrs. as per the standard norms. It is further submitted that, in this case the letter would have been delivered well in time to the addressee had the same been posted before dispatch of mails on 09/01/2010 from the CTO or at least some indication on the cover to the effect that it contained a telegram. In the absence of any such indication they are unaware of the content in the cover. The 5^th opposite party should have opted registered or speed post facility for the fast and prompt delivery of telegram but they had opted to send the same only by ordinary post. Moreover the telegram was received at CTO on 11.32 hrs on 09/01/2010 but they entrusted the same to the pickup boy only late in the evening. This was the actual reason for the delay in delivering the telegram timely to the addressee for which they cannot be held liable. In this case there was no willful or fraudulent act on the part of any of the employees of the department and hence they are in no way liable to compensate the petitioner even if there was any loss or injury sustained by them in this regard. Hence prayed to dismiss the petition with their cost.

The matters to be decided are:

1. Whether there is any deficiency in service on the part of the opposite parties?
2. Reliefs and costs if any?

Evidence consists of the affidavit filed by the petitioner and the opposite parties, Ext.s A1 to A22, B1 to B3 and depositions of PW1, RW1 and RW2.

Point No. 1:  Admittedly the telegram was received at CTO Calicut on 09/01/2010 at 11.32 hrs. In their version the opposite parties No. 1, 2 and 5 had stated that “wherever there is no telegram circuit existing/operating the BSNL telegraph office is authorized to resort to the posting of the telegram under posting certificate direct to the addressee instead of routing to CO’s under the jurisdiction by invoking ITR-84, 117, 121 and 122”. Entrusting the telegram to the postal authorities is another option in such places. Here the 5^th opposite party had handed over the telegram to the postal authorities in a cover as an ordinary letter. According to the petitioners, their residence is only 30 kms away from Calicut and it will take only 1 hour journey in a vehicle. So considering the importance and urgency of the message in that telegram if the 5^th opposite party had resorted to deliver the telegram directly to the addressee then it can easily be delivered on the same day itself. It is true that the telegram was in the “X” category (Ext. A3) means the opposite parties are not bound to take any urgent modes of transmission on this case. But if the officials of the 5^th opposite party had given due importance to the message in that telegram then they can take their own arrangements for the speedy delivery of the telegram to the addressee and can collect the additional expenses from the addressee himself instead of handing over the same to the postal department. But they have not done so.

From the evidence it is found that even  when the telegram was handed over to the postal authorities for delivery, the staff who had handled the telegram has not given any importance to that telegram. He had simply handed over the cover containing the telegram to the collection boy of the opposite parties No. 3 and 4 without indicating the content on the cover. Moreover admittedly the telegram was received at CTO Calicut at 11.32 hrs on 09/01/2010 but instead of handing over the same to the postal authorities immediately, they had waited till evening for the arrival of the collection boy of the postal department. In their version and deposition of RW1 Sri. Fasala Rahman, Inspector posts, the opposite parties No. 3 and 4 had clearly stated that “there was no indication on the cover to the effect that it contained a telegram. If there was any indication on the cover regarding its contents, though they are not legally bound to make any special arrangements, even then they could have make some arrangements for the speedy delivery of the article.” The petitioner produced the said cover as evidence to prove the said contention of opposite parties No. 3 and 4 and was marked as Ext. A22. In the absence of any such indication on the cover they are unaware of the contents in the cover and hence they treated it as an ordinary letter and had dispatched as per their normal channel. They received the articles only in the evening on 09/01/2010 and by that time mails of the day had already been dispatched. Since 10/01/2010 was a Sunday the letters received from CTO Calicut were dispatched to the destination only on 11/01/2010 and the petitioners’ letter reached their destination post office Kollam-Koyilandy on 13/01/2010 and it was delivered to him on the same day itself. According to them the ordinary letters has to be delivered to the addressees within 48 hours as per their standard norms. The opposite parties No. 3 and 4 further stated that “if the cover containing the telegram has been posted to them from the CTO before dispatch of mails on 09/01/2010, then also the letters would have been delivered to the addressee well in time.” But this was also not done by the CTO. So from the evidence it is found that the opposite parties No. 3 and 4 had done their duty without fault but the delay occurred was due to the negligence and carelessness on the part of the CTO, Calicut. They should have either taken their own arrangements for the speedy delivery of the telegram or handed over the same to the postal authorities immediately without delay on receipt of the same on 09/01/2010 at 11.32 hrs or at least endorse the contents on the cover before handing over the same to the postal department. In these days getting an admission in a prestigious institution like National Defence Academy is very rare and much difficult also. The way the official of the 5^th opposite party had handled the telegram which contained such an important message which can even change the life of a young man shows how negligently and carelessly he is handling things and the weightage he had given to the prospects and ambitions of a talented young man like the 2^nd petitioner. This is nothing but deficiency in service on the part of the officials who had handled the telegram at CTO, Calicut.

Ext. A 18 is the letter issued to the P.I.O. of 5^th opposite party by the 1^st petitioner dated 25/10/2010 under RTI Act 2005 requesting to furnish the name, address and designation of the official who had handled the disputed telegram at CTO on 09/01/2010. Ext. A19 is the reply dated 19/11/2010 to Ext. A18 letter wherein it is stated that “The name and address of the officials on duty and handled the telegram on 09/01/2010 is not of public interest as the entire actions and executions were in tune to the departmental orders and instructions. Hence as per Section 8(1)(j) of RTI Act, 2005  the information could not be furnished.” From the evidence it is found that the official of the 5^th opposite party who had handled the telegram in a negligent and careless manner had resulted undue delay in delivering the same to the addressee which ruined the ambition of the talented young man – the 2^nd petitioner – to join the prestigious National Defence Academy and to serve the country. This is nothing but deficiency in service on the part of the concerned official at CTO Calicut. Since the opposite parties No. 1, 2 and 5 are not willing to disclose the identity of the said official, we are of the view that the BSNL department is liable and responsible for the act of the said official. As negligence, default and deficiency in service is proved on the part of the official of the 1, 2 and 5 opposite parties, they cannot claim any protection under the provisions of Section 7B of Indian Telegraph Act and they are liable to compensate the petitioners for their losses and other hardships suffered. Point No. 1 found accordingly.

Point No. 2: In view of the findings in Point No. 1, this petition is to be allowed and the petitioners are entitled to get reasonable reliefs. Though the petitioners in their petition had stated that due to the delay in getting the telegram, the 2^nd petitioner could not join at the National Defence Academy Pune for the prestigious 123 NDA course, which ruined the prospects, ambitions and future of the 2^nd petitioner apart from the huge financial expenses and efforts taken for that, in cross examination PW1 the 1^st petitioner had stated that the 2^nd petitioner had joined for the engineering course at Naval Academy, Ezhimala in the year 2010 and they have not suffered any difficulties in getting admission there. The said statement of the 1^st petitioner shows that the said act of the 5^th opposite party has not affected the career of the 2^nd petitioner adversely and the grievance remaining is that the 2^nd petitioner had lost his chance to join the prestigious 123 NDA Course at National Defence Academy Pune and the loss of amount spend and efforts taken for that. As it is found that there is no deficiency in service on the part of the 3^rd and 4^th opposite parties, they are absolved from the liability to compensate the petitioner for their grievances.

            Considering all the facts of the case and the grievances suffered by the petitioners we are of the view that allowing an amount of Rs.1,00,000/- is quite reasonable in this case.

In the result the following order is passed. The opposite parties No. 1, 2 and 5 are ordered to pay Rs.1,00,000/- (Rupees one lakh only) as compensation and Rs.10,000/- (Rupees ten thousand only) as cost of the proceedings to the petitioner within 60 days of receipt of this order. Failing which the whole amount will carry 9% interest from the date of default till payment.

Dated this the 27^th day of July, 2018

Date of filing: 14/09/2011

SD/-MEMBER                          SD/-PRESIDENT                SD/-MEMBER

 APPENDIX

Documents exhibited for the complainant:

A1. Telegram issued from DMS (MB) AIR Head quarters

A2. Intimation from Appeal Medical Board

A3. Telegram containing joining instruction

A4. News published in Malayala Manoram  daily

A5. News published in Madhyamam  daily

A6. Reply issued by Superintendent of Post Officers, Vatakara

A7. Reply issued by 2^nd opposite party

A8. Complaint filed by 1^st petitioner to the 3^rd opposite party

A9. Complaint filed by 1^st petitioner to the 4^th opposite party

A10. Acknowledgement issued by the 3^rd opposite party

A11. Reply issued by the 4^th opposite party

A12. Reply issued by the 3^rd opposite party

A13. Application under the RTI act to the PIO of 3^rd opposite party

A14. Copy of the letter transferring the application

A15. Reply issued by the Senior Post Master, Calicut

A16. Application under RTI Act to the PIO, O/s. Principal GM Office, Telecom

A17. Reply to the above application

A18. Application under RTI Act to the PIO, Central Telegraph Office, Calicut

A19. Reply to the above application enclosing the copy of the relevant page of the register

A20. Appeal filed before the GM, Telecom under the RTI Act

A21. Communication rejecting the appeal

A22. Postal cover contained the telegram issued by the opposite party

Documents exhibited for the opposite party:

B1. Complaint received from the petitioner

B2. Reply issued to that complaint

B3. Section 6 of Indian Post Office Act 1898

Witness examined for the complainant:

PW1. Raveendran N.(Complainant)

Witness examined for the opposite party:

RW1. Gangadharan, Pulluvan Tharammel, Via. Perambra, Kozhikode

RW2. Fasala Rahiman, Inspector Posts, O/o. SSPOS, Calicut 673 005       

                                                           Sd/-President

//True copy//

(Forwarded/By Order)

SENIOR SUPERINTENDENT