B S SIDHU vs Secretary Central Govt Post And Telegraph Department

WHETHER a person, other than the original consumer who hires any services, can maintain a complaint for the alleged deficiency therein under the Consumer Protection Act, 1986? If so, then has the approval of the original consumer to be given expressly in writing alone? This is the somewhat significant twin question, which arise at the threshold in this case.

DR . B.S. Sidhu, the complainant, is the proprietor of the Daily Hak Parast, a Hindi newspaper of some standing, published from Kaithal in District Kurukshetra. It is his case that he had availed the facility of receiving fresh news through the United News of India (hereinafter referred to as the UNI), and for the said purpose had installed a Teleprinter Machine on due payment through them. According to the relevant agreement thereof with the Indian Post and Telegraph Department, it was the latters duty to keep the teleprinter circuit and its line in running order from 9 A.M. to 5 P.M. The genesis of the trouble is alleged to have originated on 20th July, 1989 when a prominent news item in the Daily Hak Parast was published, highlighting, a procession taken out by the telegraph and telephone consumers of Kaithal against the S.D.O. and the Junior Engineer of the said Department there, wherein slogans against corruption in the Department were raised, along with demands to maintain telephone services in proper condition. It is the complainants case that on the following day the telephone lines and the teleprinter machine tele -communication lines were intentionally disconnected by the officials aforementioned. A complaint No. 237 was immediately lodged regarding this defect, and further the Manager of the Hak Parast approached the officers of the Telephone Exchange. However, an employee, Jit Ram by name, rebuked him and threatened that the defects in the line will continue till they learnt a lesson for publishing defamatory news against the Departments officials at Kaithal. This malicious disconnection of the lines was condemned by the Rotary Club of Kaithal and, apparently by an association of consumers of telephone services, who demanded their efficient maintenance. The matters were also brought before the Patarkar Singh of Kaithal, which convened a meeting and demanded that unless the defects were removed forthwith, they will stage a Dharna before the offices of the Telephone and Telegraphs Department. On the 25th July, 1989, the President of the Yuva Congress is also alleged to have condemned the illegal disconnection of telephone and T.P. lines to the Daily Hak Parast Office, as also the corruption prevailing in the Department. Yet again, on the 28th July, 1989, the Teleprinter lines were again disconnected, with regard to which prominent news items were published in the Daily Hak Parast. Similarly, later both in the news columns and the editorial one, the alleged corruption in the Department and the intentional creation of faults in the line by the officials was highlighted. Nevertheless the officials of the Department remained adamant and attempted to shift the blame for the disconnection to other factors, like the dead electric meter etc. On the 26th July, 1989, the complainant received a message that teleprinter set at his premises was faulty, whereupon Mr. M.P. Soni, Senior Engineer of the UNI, Chandigarh, visited Kaithal on the following day and checked the apparatus and reported that there was no trouble, whatsoever, with the teleprinter machine. The complainants requests for the rectification of the defective line fell on deaf ears.

THE further case of the complainant is that the matter was brought to the notice of the highest authorities, including the General Manager of the Telephone Department of the Haryana Circle, and the General Manager (Telephone), Ambala, but no favourable response could be elicited. Regular and persistent complaints were made regarding the defective teleprinter lines, but the S .D.O. and the Junior Engineer refused to respond as they intended to teach the complainant a lesson for the publication of the news item against them. Ultimately, the complainant was left with no alternative, but to discontinue the teleprinter connection in January, 1990. It is his case that he has suffered financial losses to the tune of Rs. 82,928/ -, the details whereof are given under six items in paragraph 8 of the complaint.

APART from the above, it has been alleged, that due to the illegal disconnection of the teleprinter lines, the prestige of the complainants newspaper were lowered in the eyes of its readers, which seriously affected its circulation. The source of fresh news through the UNI was dried up by the conduct of the respondent -Department. The complainant had to depend on other unsatisfactory sources for the collection of news, which led to financial loss in the shape of over -time paid to the press workers. The complainant also served a legal notice on opposite party No. 1 through an Advocate, claiming damages to the tune of Rs. 3 lakhs, which also did not elicit any response. In the prayer clause of the complaint, a cryptic demand of Rs. 3 lakhs, as damages on account of loss suffered by the complainant due to the negligence of the opposite party, and the loss of prestige of the newspaper and the adverse effect on the sale and circulation thereof, has been made. In reply to the notice of the complaint, issued to the opposite parties, a counterversion on their behalf has been filed. Therein two legal preliminary objections have been raised against the very maintenance of the complaint. Firstly reliance is placed on Section 7 -B of the Indian Telegraphs Act for submitting that the complainant is bound to ask for an arbitration under the said provision and also because the terms and conditions for commissioning of the T.P. Circuit had been expressly agreed to, and, consequently, the arbitration provision was mandatory. Secondly, the stand taken is that the complainant is not the authorised person to file the complaint, because the application for providing the teleprinter circuit and the contract was between the Posts and Telegraphs Department, and the United News of India, through their Senior Engineer Sh. M.P. Soni. Further the application for the closure of the teleprinter circuit on 31st January, 1991 was again made by the UNI through their aforesaid Engineer. In substance, the objection is that the complainant is not a consumer having the locus standi to raise the dispute.

ON merits the fair stand taken is that the complainant is running the Daily Hak Parast, which is being published from Kaithal, and on the demand of the UNI, a T.P. Circuit between Chandigarh and Kaithal was provided. One end of this circuit was installed at the premises of the UNI at 1934, Sector 22 -B, Chandigarh, and the other end in the office of the Editor -in -Chief of the Daily Hak Parast at Sarafa Bazar, Kaithal. For want of knowledge, it has been denied whether the complainant is paying any charges to the UNI for this circuit, and it is asserted that being a commercial and essential services department, the opposite party keeps the tele -communication services in order. Whilst denying the allegations of disconnection or deliberate faulting of the circuit, it is admitted that the same remained faulty for three hours only on 20th July, 1989. It is pointed out that the teleprinter machine was owned by the UNI and the maintenance of the same was their own responsibility. Whilst controverting the respective paragraphs of the complaint, it is highlighted that the complainant Dr. B .S. Sidhu had never deposited any amount regarding the T.P. Circuit with the Tele -Communication Department. However, the amounts of Rs. 1,000/ - and Rs. 18,890/ - were deposited by the UNI vide demand notice annexed as R5 and R6, respectively. Apart from these documents, Annexures R1 to R4 have been attached.

IN the rejoinder filed on behalf of the complainant, the earlier stand has been primarily reiterated. A comprehensive list of documents in support of the complainants case was placed on the record, and a copy thereof was served on the opposite party, who have not assailed the authenticity thereof. In support of the complaint Dr. B.S. Sidhu filed a detailed affidavit in consonance with the complaint, along with another affidavit of Bal Kishna Kuztar. On behalf of the opposite party, a detailed affidavit in line with the counter -version has been filed by Sh. G.S. Bains, Sub -Divisional Officer (Telegraphs), Kaithal. During the course of the proceedings, the opposite party sought the cross -examination of the complainant, which was conducted at some length on 10th December, 1990. On the other hand, Sh. G.S. Bains, S.D.O., was cross -examined at considerable length on behalf of the complainant on the 7th January, 1991. Thereafter the parties closed their evidence.

DURING the course of arguments, with regard to the preliminary objection whether the complainant was a consumer for the purposes of the Act, the complainant filed an application for placing on record further documents to indicate that he was a beneficiary of the Teleprinter service hired by the UNI, with their approval. This application was allowed along with the documents attached on the payment of Rs. 300/ - as costs, which were accepted by the opposite party. Thereafter exhaustive arguments have been addressed both on the legal issues, as also on merits.

INEVITABLY , one must first deal with the preliminary objections, which are legal in nature, before adverting to the merits of the case. Mr. Walia, learned Counsel for the opposite party, was obviously half -hearted in pressing his first preliminary objection resting on Section 7 -B of the Indian Telegraph Act. It was faintly submitted that by virtue of that provision, as also the relevant clauses of the terms and conditions of the contract between the Department and the UNI, the complainant could not avail of any remedy under the Act, without first resorting to the statutory arbitration. The aforesaid contention is concluded against the opposite party within this jurisdiction by the recent order of this State Commission in Jagdamba Rice Mills v. Union of India, Ministry of Telecommunications, I (1991) Consumer Protection Judgments 273. Therein after an exhaustive discussion of the statutory provisions, as also on principle and precedent, it has been categorically held as follows: - ''31. To conclude on the preliminary legal aspect, the answer to the question posed at the very outset is rendered in the negative and it is held that the arbitration provisions of Section 7 -B of the Indian Telegraph Act are not at all a bar against seeking relief under the Act. Indeed the said Section has little or no relevance on the adjudication of consumer disputes under the Act.''

IN the light of the above, the first preliminary objection has to be necessarily repelled and is hereby rejected.

MR . Walia had then taken the stand that the complainant was a wholly unauthorised person, and, consequently, disentitled to raise the consumer dispute. This submission was rested on the ground that the Post and Telegraph Department in extending the teleprinter services had dealt with and contracted entirely with the United News of India. It was the latter, who had applied for the teleprinter connection, had executed the relevant documents of the contract, and later moved for its ultimate closure. The present complainant did not figure directly in any of these transactions, and, thus, had no privity, whatsoever, and was a total stranger to the contract. In sum the contention was that the complainant herein was not within the ambit of a consumer under the Act, and, therefore, had no locus standi to raise any dispute. This, if at all, according to the learned Counsel, could be preferred by the UNI alone. In order to appraise the aforesaid submission, one necessarily has to revert to the definition of the ''consumer'' in Section 2(1)(d), and in particular to Clause (ii) thereof. For facility of reference, the same may be noticed in extenso: - ''2. Definitions: (1) In this Act, unless the contest otherwise requires, - xx xx xx xx xx xx (d) ''consumer'' means any person who, - (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any use of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) hires any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person.''

A plain reading of the aforesaid Clause (ii), which specifically pertains to the hiring of services, would make it manifest that the statute visualises two distinct categories of ''consumers'' thereby. Inevitably, the first one is the original consumer who hires such services for a consideration. The definition, however, does not stop at that. It proceeds further to bring within its ambit a second category also, namely, any beneficiary of such services, when these are availed with the approval of the original consumer. The definition is, thus, an inclusive and extensive one. Designedly it brings within its scope not only the person who has the privity of contract with the person hiring out the services, but also subsequent beneficiaries thereof, even though the latter may not be a party to the original contract or have a direct nexus therewith. In the true spirit of consumerism, the Act has not confined itself to the original hirer alone, but equally extended it to the subsequent beneficiaries of the services as well.

THE aforesaid view is butteressed when reference is made to Clause (i), pertaining to the consumer who buys goods for consideration. Herein also, the definition does not confine itself to the original purchaser, but is further extended to any user of such goods with the approval of the former. The larger principle, which permeates the definition with regard to both the purchaser of goods and the hirer of services, is thus identical.

IT is true that normally in the ordinary conventional field of the law of contract, the doctrine of privity was paramount. However, the definition of the ''consumer'' in Section 2(1)(d) of the Act removes the constraints of that doctrine. It designedly extends its ambit of protection to the lawful beneficiaries of services hired or the user of goods purchased. Even where there is no direct contractual nexus between the person who hired out the services, and the beneficiary who avails them with the approval of the original hirer, the latter comes well within the beneficent provisions of the statute. It seems to us as unnecessary to elaborate the matter further on principle because the very language of the statute is precise and a clear pointer thereto. It seems somewhat plain that apart from the original hirer, the subsequent beneficiary thereof is eqaaily within the pale of the definition of a consumer.

IN the light of the above, the answer to the first limb of the question posed at the outset is rendered in the affirmative. It is held that a person other than the original consumer, who hires any services - namely, a beneficiary thereof - can also maintain a complaint for any alleged deficiency therein under the Act.

ONCE it is held as above, there can hardly be any doubt that the complainant herein was the beneficiary of the teleprinter services, which were indeed hired for his requirements by the UNI. It is the admitted position that one end of the teleprinter line was in the premises of the UNI at Chandigarh, whilst the other end was in the office of the Chief Editor of Daily Hak Parast at Kaithal. The complainant has placed on record a host of documents to establish that the teleprinter circuit was primarily for his benefit. In any case, there is little doubt that he was beneficiary of the same with the approval of the UNI. The conclusion is, thus, inevitable that the complainant herein has clear locus standi to maintain the complaint. Undaunted in pressing his preliminary objections, Mr. Walia had then contended that the UNI being the original hirer of services was a necessary party to the complaint, and in their absence, the lis cannot be gone into the complaint should be dismissed on that score alone at the very threshold because of their non -joinder.

WE regret our inability to accede to the aforesaid submission of Mr. Walia, which seems to err palpably on the side of hyper -technicality in the context of the Act. It deserves highlighting on larger principle that the Act is a beneficent statute, recently enacted for the better protection of the interests of consumers. It is not to be pointlessly shackled with the intricacies and niceties of procedure, which stem from the exhaustive provisions of the Civil Procedure Code applicable to the Courts of law. The proceedings under the Act are visualised as primarily simple and somewhat summary in their nature. The provisions of the C.P.C. aforesaid are not applicable to these proceedings, barring those which have been expressly so made by sub -section (4) of Section 13 of the Act. Order 1 of the Civil Procedure Code in general, and Rule 9 thereof in particular, pertaining to the joinder of parties, does not figure in the afojresaid provision, and, is, therefore, plainly not attracted to the proceedings before the Redressal Agencies. The strict technicalities as to who is a necessary, proper or a plausible party under the Civil Procedure Code, are not to be easily interjected into the simple procedure envisaged by the Act and the rules framed there under. The plea of the dismissal of a complaint because of a non -joinder of what may be at the highest a proper or plausible party, would, to our mind, be alien to this Act. This is more so when the objection with regard to non -impleadment as a party has not been expressly raised in the counter -version. Herein, admittedly, this has not been done, and at the belated stage of arguments this issue is sought to be resurrected by Mr. Walia. Even under the C.P.C. it is well settled that the plea of non -joinder must be raised at the earliest opportunity, and the party raising the same must specifically state the person who should or ought to be impleaded. If such an objection of non -joinder is not raised at an earlier stage, then in the eye of law it is deemed to have been expressly waived. Consequently, on this twin ground, the alleged objection of the non -impleadment of the UNI in this complaint must be rejected.

LASTLY it was argued by Mr. Walia with some vehemence that even though the complainant may be a beneficiary, nevertheless the approval of the original consumer for the availing or enjoyment of the services hired must be given expressly and in writing alone. Herein it was submitted that the UNI was neither a party nor had it committed in writing that the complainant was enjoying the services with their approval and this fact alone would oust the complainant from the relevant definition. Yet again we regret our inability to agree. The Act has with considerable precision defined the concept of ''complaint'', ''consumer'' and the consumer dispute etc. Therein it has nowhere been spelt out that the beneficiary of the services must enjoy the same under an expressly written consent or approval. That being so, if the statute has not made this as a requirement of law, it would, to our mind, be an error to make it so, by a process of interpretation. It bears repetition that the provisions of the Act are beneficent in nature and in favour of the consumer and provide for a simple and summary procedure, and, consequently, its construction has to be tilted against hyper -technicality. Acceding to the argument of Mr. Walia, would be inserting a technical requirement of a formally written approval in this area, which, to our mind, is not even remotely envisaged by the spirit of the Act.

IN line with the above, it has also to be recalled that the definition in Clause (ii) visualises two distinct categories of consumer, namely, original hirer of services, and the subsequent beneficiary of the same. The latter has been given an independent status, and, consequential rights by the Act, if the requirement of approval is satisfied. Such a beneficiary is not a mere agent or a delegate of the original hirer. The Act gives him a statutory status in his own right. To insist on an express written approval of the original hirer as a precondition, would be eroding this statutory status expressly conferred by the statute and rendering the beneficiary totally subservient to the original consumer. If the absence of a written approval were to render the right of such a beneficiary of services totally nugatory, then he would be at the mercy of the original hirer and his statutory rights would become in essence contingent on the whimsicality of the original hirer, who may or may not give the approval in express written terms. We are, therefore, inclined to the view that whilst the approval of the original hirer for the enjoyment of services is necessary, the signification of such approval can either be express or implied as well. Where the facts and circumstances are a clear pointer to the fact that such services were being enjoyed with the approval of the original consumer, it would be a travesty of justice to hold that the beneficiary would be deprived of the reliefs by the mere fact of an express written consent not having been given.

TO conclude, the answer to the second limb of the question is rendered in the negative, and it is held that the approval of the original consumer for enjoying the services by the beneficiary may either be express or by a necessary implication as well. It is not the requirement of law that it must necessarily be in express written terms. Once it is held as above, there can be little doubt that in the light of the documents attached to the complaint, and in particular to those annexed to the application dated the 4th February, 1991, with regard to this issue, the inference is inevitable that the teleprinter services were hired by the UNI primarily for the complainants benefit, and were indeed enjoyed by him with the latters approval. It was pointed out at the bar that at the relevant time such hiring of teleprinter services would only be through a news agency, and not directly, and, therefore, the complainant had no option but to secure them through the UNI. Indeed Mr. Walia was in the end fair enough to concede that in case it is held that a written consent is unnecessary, then the sole inference by necessary implication was that the complainant was a beneficiary of the teleprinter services with the approval of the UNI. However, we are not, in any way, basing ourselves on his concession. Indeed the evidentiary weight of Exhibits C -37 to C -48, in particular, is overwhelming in establishing the matter in favour of the complainant.

HAVING crossed the hurdles of the preliminary legal objections, the filed is now open for the examination of the case on merits. It deserves recalling that the complainant had pointedly sought to set up a conspiracy by the employees of the Telecommunication Department at Kaithal, in pursuance of which they maliciously and intentionally continued to disconnect or disrupt the teleprinter lines. This allegedly was done as a retaliation for the publication of a news item on the 20th July, 1989 in the Daily Hak Parast, which was disparagingly directed against the Department, and highlighted the alleged corruption prevailing therein. Thereafter, it is alleged that virtually a vendetta on either side ensued, in which a spate of news items in the newspaper of the complainant, other organs of the press, and also protest by public bodies led to a continuous interruption of the teleprinter lines, as a reprisal. In desperation, the complainant had ultimately to abandon the teleprinter services and seek their closure in January, 1990.

PERHAPS at the very outset it may be said that the complainant has been somewhat unsuccessful in the uphill task of establishing of deliberate and intentional faulting of the teleprinter lines by the Telecommunication staff over the relevant period. To support his stand, the complainant merely placed on record his own affidavit, reiterating the allegations levelled in the complaint, and, somewhat curiously sought to support them by a plethora of mere newspaper clippings from his paper - the Daily Hak Parast and a number of other press organs and periodicals etc. There are inherent and near -fatal weaknesses in both the pleadings and the evidence of the complainant in attempting to establish a conspiracy to foul up his teleprinter lines. What first meets the eye is that even in the complaint, no person by name was specified as the particular official, who had indulged in the alleged unauthorised practice of interrupting the teleprinter service. Merely by designation, the S.D.O. and a Junior Engineer of the Telephone Exchange, Kaithal, have, been made opposite party Nos. 2 and 3. It is somewhat plain that misconduct and allegations of this nature cannot be levelled in an omnibus fashion against the designation or an office, without specifying the persons and employees by name. The same situation prevails in the affidavit of the complainant, with the solitary addition that one Jeet Ram, Junior Engineer, had rebuked the staff of the Daily Hak Parast, and threatened to teach them a lesson for defamatory publications against the Department. Without elaborating, it is somewhat manifest that both the pleadings and the direct testimony by way of affidavit is inherently insufficient for establishing a virtual conspiracy against the complainant for faulting his teleprinter service.

THE attempt at corroborative evidence is even weaker and totally insufficient. As noticed earlier, it is no more than a host of newspaper clippings from the Daily Hak Parast itself, and from Jan Abhiman, Jan -Satta, Vir Partap, The Tribune, Navbharat Times, and the Indian Express. Mr. Walia, Advocate, appearing for the opposite party, was right in asserting that the complainant being the proprietor of one of the newspapers at Kaithal, it would not be difficult for him to muster support from the local journalistic family in the region for filing reports in his support. This apart, it is somewhat elementary that mere newspaper reports or publication in the press are not by themselves any evidence worth the name or proof of the authenticity of the facts reported therein. No attempt was made to independently prove the facts, on which the alleged reports were made in the press. In all fairness, Mr. Sidhu, Advocate, appearing on behalf of the complainant, had to virtually concede the intrinsic weakness of his case in this context. Even otherwise, it is well settled that newspaper reports, which are repetitive of the same allegations, do not necessarily become the truth, or can be styled as evidence for establishing the authenticity of the matter. Once they are excluded and the ruled out of consideration, as they must necessarily be, the inevitable result is that the complainants case has no evidentiary level, whatsoever, to stand upon. There appears to be no option, but to hold that he has failed to establish and prove that his teleprinter circuit was intentionally and deliberately interrupted by the employees of the Department as a reprisal to the publication of reports in his paper.

THOUGH the complainant has failed in the difficult task of establishing the malicious and intentional disruption of his teleprinter service, he is, however, on a much surer footing at a lower level that the teleprinter services, which he enjoyed as a beneficiary, suffered from serious deficiencies and faults in the efficient performance thereof, as envisaged by the Act. It is not in dispute at all and even established from the documentary evidence of the opposite party itself vide Annexure R -1 that the contracted service was the efficient maintenance of the teleprinter service between 9 A.M. to 5 P.M. It was writ large on the transaction that this service was being extended through the UNI to a Daily Newspaper at Kaithal, and, consequently, its prime utility was to deliver fresh and current news for publication without any interruption. Such a service had to be efficiently performed and maintained, barring exceptional circumstances beyond the control of the Department, or vis -major. Indeed, Mr. Walia, learned Counsel for the Department, did not seriously dispute that the Department was bound to efficiently maintain and perform the teleprinter service during the contracted hours of 9 A.M. to 5 P.M. There appears to be overwhelming evidence and established surrounding circumstances to prove that herein during the relevant period, the teleprinter services, hired out by the Department, suffered from patent faults, imperfections, shortcomings and inadequacies in its performance. Indeed an inkling of this is given in a veiled but fair admission in the affidavit of Sh. G.S. Bains, Sub -Divisional Officer (Telegraph), Kaithal. This deserves quotation in extenso: - ''12. Para 12 of the affidavit is wrong, incorrect, baseless and hence denied. The problem can be due to physical line fault on which the T.P. Circuit was working. As the line is passing through jungles, rivers and canals, it is very much understood that if any fault on physical line occur/observed, it would take sometime to remove the fault, because there is no alternative except to patrol the line by the Line Staff and other Telecom. Staff....''

The aforesaid averments have in terms been virtually repeated in para 17 of this very affidavit also. These averments in a way are a patent admission of the inherent weakness of the teleprinter lines, over which the circuit was operating, and the possibility of their repeated interruption etc. and the assumed delay in rectifying the faults.

IT is in the light of the above that the complainants evidence of repeated and persistent interruption over long periods has to be construed. Apart form the averments in the affidavit of the complainant, there is virtually undisputed documentary evidence on the record to support the same. It would appear there from that innumerable written complaints were made by the complainant with regard to the faulty working of the teleprinter services. Mr. Sidhu was right in contending that these written complaints were obviously in addition, to the innumerable oral or telephone complaints, which could not be now proved from any record, barring the clear averments of the complainant in his affidavit. The documents which deserve pointed notice are Exhibits C -26, C -27, C -28, C -29, C -30, C -31, C -32 and C -33. No challenge to the authenticity of these complaints was made on behalf of the opposite party, far from any evidence in rebuttal thereof. Apparently, in July 1989 and onwards the complainant could not possibly have in his mind to create any evidence by lodging repeated written complaints etc., unless he was actually harassed by the failure of the teleprinter services, to the consequential detriment of his Daily Newspaper. A reading of the documents aforesaid would make it manifest that from July 27th, 1989 to 24th October, 1989, nearly 24 complaints, mentioning the respective complaint numbers, were lodged with the Department, with regard to the repeated interruption of teleprinter services, extending not over a particular day, but sometimes even over a week. This may be highlighted by way of a chart as under: - Sr. No. Date of Complaint Complaint No. 1. 27.7.1989 to 2.8.1989 319 2. 4.8.1989 35 3. 7.8.1989 and 9.8.1989 66 4. 11.8.1989 95 5. 12.8.1989 114 6. 18.8.1989 244 7. 19.8.1989 245 8. 21.8.1989 281 9. 23.8.1989 301 10. 24.8.1989 307 11. 29/30.8.1989 373 12. 8.9.1989 73 13. 15.9.1989 73 14. 29.8.1989 73 15. 31.8.1989 389 16. 1.9.1989 17. 2.9.1989 402 18. 4.9.1989 21 19. 15.9.1989 Nil 20. 16.9.1989 Nil 21. 16.10.1989 22. 18.10.1989 23. 20.10.1989 24. 24.10.1989 From the aforesaid documentary base, it seems to be well established that during the relevant period the teleprinter services were repeatedly and persistently failing and faulting at the end point in the office of the Daily Hak Parast, Kaithal. There is nothing, whatsoever, to doubt with regard to the authenticity of the complaints and the quantum of interruptions pointed out therein, with persistent requests for the rectification thereof.

WHAT , however, appears to be a clincher in the case is the fair admission emanating from a departmental communication itself. This is Exhibit C -35 a letter of the Sub - Divisional Officer (Telegraphs), Kaithal, addressed to the General Manager, Daily Hak Parast, Kaithal. It is significant enough to deserve notice in extenso: - '' No: - P -13/TP Complaint/20 dt. at KHo the 14/12/89. Sub: Non -functioning of UNI TP in the mlo Aug -Sept -89. Please refer your complaint on the sub. cited above, the matter has been investigated and it has been found that malfunctioning of TP during the period mentioned herein was mainly due to disturbance in physical lines. Now the same has been overcome and now TP cct is functioning normally as is evident from the fact that during Nov. 89, booking of TP cct is negligible. Anyhow, inconvenience caused to you is regretted and it is assured that due attention will be given to UNI cct. Any problem in this regard, may pl. be brought to the notice of u/signed or J.T.O (Carrier), Kaithal. Sd/ - Sub -Divisional Officer Telegraphs, Kaithal.

It is plain from the above that the Department admitted the malfunctioning of the teleprinter circuit alleged to have been occasioned by the disturbance in physical lines. Having contracted to hire out the teleprinter circuit, it is indeed the bounden duty of the Department to keep the physical lines in order. The liability for the poor and inefficient maintenance of the service cannot be shifted merely by averring that it was caused because of disturbance in physical lines. It is not the case of the Department that this malfunctioning of the teleprinter lines was something which could not be efficiently and promptly rectified or that the disturbance therein was occasioned by an overwhelming accidental cause, amounting to a virtual vis -major. The burden lay heavily on the Department to show that the alleged disturbance in the physical lines was incapable of being rectified with promptitude and they have singularly failed to discharge the same. To our mind, the admission in C -35 read with the mass of written complaints earlier and oral ones averred to in the affidavit leads to no other inference that over the relevant period the teleprinter circuit was working defectively with continuous interruptions over prolonged intervals.

Lastly in this context is the fact of the abandonment of this service by the complainant by way of the closure thereof in January 1990. In Para 16 of the affidavit, the complainant categorically stated that when the Department failed to keep the teleprinter circuit in order, he was left with no choice, but to get the circuit disconnected through the UNI Chandigarh, which was ultimately done on the 31st January, 1991. Significantly, no challenge was posed to this part of the complainants testimony on affidavit, even though he was cross -examined at some length by the learned Counsel for the Department. The same has, consequently, to be accepted as correct. Even otherwise, it is somewhat elementary that to a Daily Newspaper, teleprinter service is one of the most essential aids in its publication. Apparently, it was only when the complainant had to abandon all reasonable hope of the same being made available to him efficiently, that he sought its disconnection. It is true that the UNI, through whom alone the circuit could be hired at that time, did not deem it expedient to lay the blame for the disconnection on the shoulders of the Department, or to castigate them for the deficiencies therein. The reason for this is somewhat obvious because they have to repeatedly avail and seek such services from the Department and they would not wish to rub them on the wrong side for the benefit of the complainant alone. The ultimate abandonment of the teleprinter service by the complainant is a sizable and a clear pointer to its persistent malfunctioning.

IN the light of the above, we must hold that the teleprinter service availed by the complainant as a beneficiary of the UNI, plainly suffered from grave deficiencies, well within the meaning thereof under the Act. He is, thus, clearly entitled to seek relief against the same under the relevant provisions of this statute.

NOW in the context of relief, the stance of the complainant is a double -edged one. Firstly, quantum -wise a sum of Rs. 3 lakhs has been claimed as damages in the prayer clause, on account of loss suffered due to the negligence of the respondents, and for loss of prestige of the newspaper and the adverse effect on the sale and circulation thereof, including extra -expenses which had to be incurred. Secondly, in para 8 of the complaint specific items of financial loss, inter alia, occasioned by the payment thereof to the Department, through the UNI, have been claimed to the tune of Rs. 82,928/ - only. As regards the somewhat tall claim of Rs. 3 lakhs as damages, it would appear that the complainant hardly seems to be alive to the basic requirements for securing compensation for specific loss or injury suffered by him due to the negligence of the opposite party. It suffices to say that technically neither there are any adequate pleadings nor any evidence worth the name, which can possibly merit the award of compensation to the tune of Rs. 3 lakhs. As has already been noticed at the outset, it was only in the prayer Clause itself that a bald assertion has been made with regard to damages on this score. No specific pleadings in the complaint regarding the direct nexus of any financial loss or injury accruing from the failure of the teleprinter circuit have been made at all. This by itself would be a sizeable hurdle because of the rule that evidence is not to travel beyond the pleadings. However, herein what deserves highlighting is the fact that no evidence worth the name has been led at all with regard to the loss or injury suffered by the complainant due to the failure of the teleprinter service, which could merit compensation at the high level claimed now. Indeed it is somewhat surprising that in the affidavit of Mr. B.S. Sidhu himself, no averment even with regard to the quantum of damages of Rs. 3 lakhs appears at all. He contented himself by an omnibus allegation that the deponent has suffered mentally, socially and economically, due to the fault of the respondents. There is, thus, apatent paucity of evidence on this score altogether. As regards any fall in circulation of the newspaper, and consequential financial loss, the stand of the complainant was belied in his own cross -examination. He stated therein that in June 1989 the circulation had risen to nearly 7,000 copies. However, he had to concede that even in September 1989, the number of copies of the newspaper printed and published remained the same, and this was also true for the subsequent months of October, November and December, 1989. He had further to concede that though he maintained a record of allegedly overtime workers and payments to them, he had neither appended them to the complaint nor did he have it with him at the time of cross - examination. He was pinned -down to state that as an income tax assessee he had submitted a return of income for the accounting year 1988 -89 to the tune of Rs. 20,000/ - only, which included also the return of his medical practice, apparently, as a Homoeopath. It seems somewhat wasteful to labour the point, and it would suffice to say that there is no foot -hold worth the name either in the complaint itself or in the supporting affidavit and documents and in the testimony given before the Commission for the inordinately tall claim of Rs. 3 lakhs sought for the loss of prestige and the alleged adverse effect on the sale and circulation of the newspaper. This limb of the claim for compensation to the tune of Rs. 3 lakhs has, therefore, to be rejected as unsupported by any evidentiary foundation.

HOWEVER , the claimant is on a surer footing with regard to his claim of financial loss as regards specific items paid to the Department, either directly or through the UNI. We have already held categorically that the teleprinter service provided to the complainant suffered from patent deficiency. That being so, the complainant was compelled to have the same disconnected. On the overall circumstances of the case, in such a situation, the complainant would be entitled to the refund of the charges paid by him in this connection, when the corresponding service therefor had virtually failed. Clause (c) of sub -section (1) of Section 14 of the Act expressly visualises the return to the complainant of any charges paid by him, if he succeeds in establishing the deficiency of hired services. In paragraph 8 of the complaint, as also in the relevant averments in the affidavit of Shri B.S. Sidhu, the specific amount of charges paid to the Department directly or through the agency of the UNI, have been detailed. As noticed earlier, complainant has failed due to his own remisness in leading evidence in establishing financial loss, which he must have suffered because of the failure of the teleprinter facility for his daily newspaper. In the absence of such evidence, we cannot either guess or grant the same. However, he is clearly entitled to the return of the charges paid for the deficient service rendered. This would include items (i), (ii), (iii) and (iv), namely, Rs. 7,500/ -, Rs. 1,000/ -, Rs. 18,890/ -, and Rs. 27,538/ -, respectively. On the contrary, item (v), with regard to the alleged overtime paid to the workers at the approximate rate of Rs. 3,000/ - per month, and item (iv), with regard to electricity charges and generator rent charges at the rate of Rs. 1,000/ - per month, are not borne out by any evidence, and, have, consequently, to be disallowed. The sum total of the aforesaid four items is the amount which stands established and to which the complainant is clearly entitled. To conclude, we direct the opposite party to return to the complainant the charges paid by him with regard to be teleprinter services, namely, Rs. 7,500/ -, Rs. 1,000/ -, Rs. 18,890/ -, and Rs. 27,538/ - totalling Rs. 54,928/ -. This amount shall be refunded to the complainant within a period of two months from today, failing which compliance would have to be enforced under Section 27 of the Act.

Pronounced in open Court.

Appeal allowed.