1. OFFICIALS of the Telecom Department have filed this appeal challenging the validity of the order dated 18.12.2002 passed by the Berhampur District Forum in C.D. Case No. 36 of 2002. By the impugned order, the District Forum has held the appellants negligent in rendering their services and accordingly compensation of Rs. 2,000/- (two thousand) has been awarded against them.
2. THE respondent filed the aforesaid complaint alleging as follows: On 25.8.2002, he sent a telegram requesting the addressee to take his mother immediately. Although the address was complete and the message of the telegram was clear, the same was not delivered to the addressee and the message transmitted was also obscure. It was clear case of negligence for which he suffered mental agony.
The appellants filed their written version, but at the time of hearing remained ex parte.
It is contended on behalf of the appellants that the Government in the Telecom Department as well as its officers are protected under Section 9 of the Indian Telegraph Act, 1885 and, therefore, the District Forum went wrong in directing the appellants to pay compensation to the respondent. In support of the above contention, the appellants relied upon the order of this Commission dated February, 1997 in C.D. Appeal No. 380 of 1994, order dated 13.1.2003 in C.D. Appeal No. 217 of 1996, order dated 15.3.2002 in C.D. Appeal No. 740 of 1996 and the order of the National Commission in Union of India v. Tej Bhan, I (1996) CPJ 237 (NC)=1996 (1) CPR 88. Learned Counsel for the appellants also referred to Rule 5 of the Indian Telegraph Rules which states that the accuracy of the telegram is not guaranteed.
3. SECTION 9 of the Indian Telegraph Act, 1885 reads as follows:
"(9) 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."
A bare perusal of the above provision would indicate that it consists of two clear parts which are joined by the word "and" appearing in between. The first part deals with the immunity of the Government. It states that for the failure in duty by any telegraph officer with regard to the receipt, transmission or delivery of any message, the Government cannot be held responsible. The second part deals in respect of officers and it protects them from irresponsibility/liability unless it is found that such officer acted negligently, maliciously or fraudulently in performing his duty relating to receipt, transmission of delivery of any message. The question that arises for consideration is whether transmission of message by means of telegraph can be held to be in course of exercise of sovereign functions so that the State or its officers can take the protection of sovereign immunity. The Mysore High Court (vide 1970 Mys. 19) has held that the postal department is a commercial-cum-public utility department and by no means it exercises sovereign function of the State. The Himachal Pradesh High Court (vide 1992) 1 Cur LJ (Cr. & Rev.) 122 has held that the activities of the Telegraph Department are not attributable to sovereign powers of the Government. The Telegraph Department is run by the Ministry of Communication in the Government of India on commercial principles. The Government is liable for the tortious acts committed by its servants and sovereign immunity can be claimed only if the functions are performed on the delegation of the sovereign powers of the State. On careful consideration of the above observation, we have no hesitation to hold that in order to get protection of sovereign immunity, it must be established by the persons who claim such immunity that the injury was caused in course of exercise of sovereign functions of the State. The Telecom Department while transmitting message by means of telegraph can be said to be rendering public utility service and, therefore, it cannot be considered strictly as exercising sovereign powers or functions.
4. ASSUMING that under Section 9 the appellants can claim immunity, we may, at the cost of repetition, say that it consists of two parts. As indicated above, under the first part, the State cannot escape its liability if it is found that the Telegraph Officer has failed in his duty with respect to the receipt, transmission or delivery of any message. In other words, if the concerned officer defaults in performing his duty, the State cannot claim immunity. Default is failure in duty. From the following facts, it would be crystal clear that the concerned officer has failed in his duty in not transmitting the message sought to be sent by the respondent. The respondent wanted to transmit the following message. The address and contents are quoted hereunder:
"Kommana Suryaprakashrao Sanjeev Colony Parvatipuram ''Take mother immediately."
Admittedly the telegram was not received by the above addressee. What transmitted, was as follows: "Kommana Suryaprakashrao Sanjeev." From the above, it may be seen that the address of the addresse was not properly mentioned, for which the addressee could not receive the telegram. The contents of the message "take mother immediately" was also not transmitted. The transmitted version is obscure and unintelligible, which clearly establishes that the concerned officer, who transmitted the message, has failed in his duty and he did not take due care. In the circumstances, the order of the District Forum holding the appellants guilty of deficiency of service cannot be faulted with.Claim for damages is maintainable for the tension, harassment suffered by the consumer. Therefore, the compensation awarded by the District Forum in favour of the respondent is fully justified.
The cases relied upon by the learned Counsel for the appellants are distinguishable. None of those cases was dealing with the instances of officers failing in their duties. Therefore, the ratio of those cases is not applicable to the facts and circumstances of the present case.
5. FOR the reasons mentioned above, there is no merit in this appeal which is accordingly dismissed. No costs. Appeal dismissed.
