BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM<br /> VAZHUTHACAUD, THIRUVANANTHAPURAM.<br /> PRESENT<br /> SRI. G. SIVAPRASAD : PRESIDENT<br /> SMT. BEENAKUMARI. A : MEMBER<br /> SMT. S.K.SREELA : MEMBER<br /> O.P.No. 491/2003 Filed on 12.12.2003<br /> Dated : 15.07.2008<br /> Complainant:<br /> Dr. M.S. Balasubramaniyan, 4/169 Ambala Nagar Extn, Kowdiar P.O, Thiruvananthapuram – 3. <br /> <br /> Opposite parties:<br /> <br /> 1.Post Master General, Thiruvananthapuram.<br /> <br /> 2.Senior Superintendent of Post Office, G.P.O, Thiruvananthapuram.<br /> <br /> (By Sri. M.P. Sasidharan Nair) <br /> This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 24.01.2006, the order was not prepared accordingly. This Forum assumed office on 08.02.2008 and re-heard the complaint. This O.P having been heard on 24.05.2008, the Forum on 15.07.2008 delivered the following:<br /> <br /> ORDER<br /> <br /> SRI. G. SIVAPRASAD: PRESIDENT <br /> <br /> The facts leading to the filing of the complaint are that complainant is a pensioner and started a metallurgical consultations. Complainant had given his know-how to M/s Cheema Metals Private Limited, Madurai. Based on his know-how plants and machineries were erected and produced ally steel wires and rods were already produced first time in India in most economical ways. Due to some economical problems the directors alone could not run the plants. They wanted to sell complainant's know-how without his consent to others. Complainant objected this through a telegraphic message that “do not exhibit my know-how to others”. The said telegram was sent on from the Medical College post office. The said telegram was not delivered to the concerned. Complainant came to know that his know-how was already sold to a steel plant expert. Complainant requested the Superintendent of post office to get a proof of delivery. Till date the Department could not be able to get a proof of delivery. This has caused him financial loss to a tune of Rs. 7 lakhs. Hence this complaint claiming loss from opposite parties due to negligence.<br /> <br /> <br /> Opposite parties entered appearance and filed version contending that complainant is not a consumer as defined under Sec. 2(1)(d)(ii) of the CP Act. The case of the complainant is exclusively triable by a civil court. As such the complaint is liable to be dismissed summarily on this score alone. The telegram messages are being transmitted through BSNL department. The case of the complainant is with regard to the non-delivery of the message at Sivakasi and therefore the Sub Divisional Engineer, Central Telegraph Office, Thiruvananthapuram is a necessary party and hence the complaint is bad for non-joinder of necessary party. It is true that an ordinary inland telegram was booked by Dr. A. Balasubramaniyan, Cheema Metals Private Ltd., Cheema Fire Works, 18/8, Kamak Road, Sivakasi on 23.08.2003 at 1200 hrs. from Thiruvananthapuram Medical College Post Office. The said telegram was transmitted to the destination through CTO, Thiruvananthapuram on the very same day at 1505 hours under LN No. 001 over phone as the telegraphic line between Medical College Post Office and CTO, Thiruvananthapuram was at fault. The CTO, Thiruvananthapuram has transmitted the message to Madurai on 23.08.2003 at 1518 hours under LN No. 702. The message received at Madurai was transmitted to Sivakasi on 23.08.2003 at 1521 hours. The message was received at Sivakasi under SFMSS LN 64 on 23.08.2003 and delivered on 24.08.2003 <br /> <br /> vide Sivakasi C.No. 26/23.08.2003. On receipt of a complaint from the sender of the telegram dated 15.09.2003 the 2nd opposite party conducted an enquiry with regard to the allegation of non-delivery of the telegrams. While conducting the enquiry opposite parties repeated the message on 21.10.2003 to the addressee and effected delivery in the second time on 22.10.2003 under No. C 47/21.10.2003. During enquiry the addressee A. Balasubramanian was addressed to intimate the receipt of the telegram vide letter No. C1/2003-04/336 dated 30.10.2003 by the Sub Divisional Engineer, BSNL, CTO, Sivakasi, but no response from him. Therefore it is to be noted that there is dispute in between the addressee and the sender of the telegram with regard to their commercial transaction. The addressee is absolutely an essential party in this case. Under Rule 82 of the Telegraph Act, an inland telegram shall ordinarily be delivered at the residence of the addressee or to their peons or servants. In this case the telegram has been delivered under proper acquittance in the delivery slip. The allegations of deficiency in service are wholly misconceived, groundless, false, untenable in law. Opposite parties are not liable to pay any compensation for delay, loss or damage of any telegram message under Sec. 9 of the Telegraph Act, 1885. Hence complainant is not entitled to any relief whatsoever and prayed for the dismissal of the complaint with costs. <br /> The points that would arise for consideration are:-<br /> (i)Whether there has been negligence or deficiency in service on the part of opposite parties?<br /> (ii)Reliefs and costs.<br /> <br /> To support the contention in the complaint, complainant has filed an affidavit of himself as PW1 and Exts. P1 to P4 have been marked. On behalf of opposite party, Senior Superintendent of Post Office, Thiruvananthapuram (North) Division has filed an affidavit and Exts. D1 to D6 have been marked. <br /> <br /> Points (i) & (ii):- The grievance of the complainant is with regard to the non-delivery of the Telegram message by the opposite party. Admittedly, complainant had sent a telegram message from the Medical College post office to Sivakasi. Ext. P1 is the receipt issued by the Medical College post office. Ext. P2 is the copy of the letter sent by the complainant to C. Sivadasan, Senior Superintendent of Post Office, GPO, Thiruvananthapuram. In the said letter(Ext. P2) the allegation is with regard to non-delivery of the telegram to A. Balasubramanian, Proprietor, Cheema Fire Works, Sivakasi. The claim in Ext. P2 is that the said telegram contains a vital message i.e; “stop exhibiting my know-how”. In the complaint, the addressee's name is mentioned as the Director, Cheema Metals Private Ltd., Sivakasi. Opposite parties have pointed out the discrepancy in the addresses. Ext. P3 is the courier consignment note dated 18.09.2003 addressed to C. Sivadasan, G.P.O. The main thrust of argument advanced by the opposite party was to the effect that the actual addressee was not made a party in the complaint and that the delivery point of the telegram was at Sivakasi, and hence, the officer in charge of Telegraph office, Sivakasi is also a necessary party to prove the delivery of the telegram. The submission by opposite party is the CTO, Thiruvananthapuram has transmitted the message to Madurai on 23.08.2003 at 1518 hours under LN No. 702. the said message received at Madurai was transmitted to Sivakasi at 23.08.2003 at 1521 hours. The message received at Sivakasi and delivered on 24.08.2003 vide Sivakasi C.No. 26/23.08.2003. A copy of the said message is marked as Ext. D1. The copy of the messenger's delivery receipt is marked as Ext. D2. It is submitted by the opposite parties that on receipt of a complaint from the complainant (i.e; Ext. P2) the 2nd opposite party conducted an enquiry with regard to the allegation of non-delivery of the telegrams. While conducting the enquiry, the opposite parties repeated the message on 21.10.2003 to the addressee and effected delivery in the second time on 22.10.2003 under No. C 47/21.10.2003. the copy of the delivery receipt dated 22.10.2003 is marked as Ext. D3. Opposite party went on to submit that during enquiry the addressee A. Balasubramanian was addressed to intimate the receipt of the telegram vide letter No. C1/2003-04/336 dated 30.10.2003 by the Sub Divisional Engineer, BSNL, CTO, Sivakasi but no response from him. The copy of the said letter is marked as Ext. D4. Main thrust of argument advanced by the complainant was to the effect that the telegram message sent by him was not delivered to the addressee, thereby complainant was incurred a financial loss to a tune of Rs. 7 lakhs. Marking of Exts. D1 to D4 were not objected by the complainant nor were opposite parties cross-examined by the complainant. On going through Exts. D1 to D4 and version and affidavit of the opposite party it is apparent that opposite parties had delivered the telegraphic message to the addressee. <br /> <br /> The submission by opposite parties is that under Rule 82 of the Telegraph Act, a telegram message shall ordinarily be delivered at the residence of the addressee or to their peons or servants. Therefore the pertinent point to be noted is that the telegram message shall be delivered to the inmates or servants of addressee without waiting the addressee in person, keeping the purpose of the telegram message. In this case opposite party submitted that the telegram message has been delivered under proper acquittance in the delivery slip. It is pertinent to note that the allegation in the complaint was regarding the non-delivery of the telegram message to the Director, Cheema Metals Private Ltd. Sivakasi whereas in Ext. P2 letter addressed to the opposite party, it has been stated that the telegram was sent to Sri. A. Balasubramanian, Proprietor, Cheema Fire Works, Sivakasi. As per Ext. P1 the telegram message is seen sent to A. Balasubramanian, Cheema Fire Works, 18/8, Kamak Road, Sivakasi. The discrepancy in the addresses of the addressee seen in the complaint, Ext. P2 and D1 is still remained unexplained by the complainant. As per Sec. 9 of the Indian Telegraph Act Government is not responsible for loss or damage. Sec. 9 of the Indian Telegraph Act reads as under:<br /> “The Government shall not be responsible for any loss or damage which may occur in consequence 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” In this context, opposite parties have made reliance on the decision of the Hon'ble National Consumer Disputes Redressal Commission reported in 1(1996) CPJ 237 (NC) wherein complainant alleges that an Express Telegram regarding the death of his relative was delivered to him on 22.07.1991 at 5 p.m. Though it was received at local post office at 10.28 p.m on 20.07.1991, claimed compensation for mental agony. National Commission held that 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. In the instant case the delivery of telegram is proved by Ext. D2 and D3. Hence complainant cannot attribute negligence or deficiency in service on the part of opposite parties. Complaint has no merit at all which deserves to be dismissed. <br /> <br /> In the result, complaint is dismissed with no order as to costs.<br /> <br /> A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.<br /> <br /> Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the day of 15th July 2008.<br /> <br /> G. SIVAPRASAD,<br /> President.<br /> <br /> BEENAKUMARI. A : MEMBER<br /> <br /> <br /> <br /> S.K. SREELA : MEMBER<br /> <br /> <br /> O.P.No. 491/2003<br /> APPENDIX<br /> I COMPLAINANT'S WITNESS : <br /> NIL<br /> II COMPLAINANT'S DOCUMENTS :<br /> P1 - Photocopy of postal receipt.<br /> P2 - Photocopy of letter dated 15.09.2003 issued to the 2nd opposite party by the complainant. <br /> P3 - Photocopy of courier consignment note No. 3979902 dated 18.09.2003.<br /> P4 - Photocopy of list of equipments. <br /> III OPPOSITE PARTY'S WITNESS :<br /> NIL <br /> IV OPPOSITE PARTY'S DOCUMENTS :<br /> D1 - Photocopy of telegram. <br /> D2 - Photocopy of Messenger's Delivery Receipt No. 5 dated 24.08.2003.<br /> D3 - Photocopy of Messenger's Delivery Receipt No. 5 dated 22.10.2003.<br /> D4 - Photocopy of confirmation letter dated 30.10.2003 issued to the complainant. <br /> <br /> PRESIDENT<br />