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2019 DIGILAW 856 (GAU)

Times Now v. Imkongnukshi Imchem

2019-07-26

MIR ALFAZ ALI

body2019
JUDGMENT : Mir Alfaz Ali, J. 1. This appeal is by the defendant against the judgment and decree dated 08.12.2015 passed by the learned Civil Judge, Dimapur in Civil Suit No. 11/2010, whereby, the suit filed by the plaintiff was decreed for damages amounting to Rs. 1,00,00,000/- for alleged defamation of the plaintiff. 2. On 30.06.2010, the defendant displayed the photograph of the plaintiff in the news channel, "Times Now" purportedly showing him as the Home Minister of Nagaland, namely, Mr. Imkong L. Imchen, who was detained at an Airport in Nepal allegedly for carrying huge amount of Indian currency notes of particular denomination, which was restricted in Nepal. The news item was that the Home Minister of Nagaland was detained at the Airport having found carrying certain amount of Indian currency notes, which was not permissible in Nepal. The said news item along with the photograph of the plaintiff was telecasted from the morning till the afternoon without verification. It was alleged in the plaint that displaying the photograph of the plaintiff purportedly as Home Minister of Nagaland in connection with a defamatory news item had greatly tarnished the image and reputation of the plaintiff in the estimation of general public and also caused damage to his profession and calling. The plaintiff, having come to know such defamatory publication of his photograph, served a notice on 18.08.2010, on the defendant seeking for an unconditional apology within two weeks of the receipt of such notice through the medium of news channel and print media both national and local. Pursuant to the said notice, the defendant issued a corrigendum in the Nagaland Post in its edition of 4th September, 2010 and also in the Times of India on its edition of 3rd September, 2010. Except publishing such corrigendum, no apology, as demanded by the plaintiff, was published and therefore, the plaintiff instituted the suit seeking for an exemplary compensation. 3. The defendant, Times Global Broadcasting Company Limited being the owner of the news channel, "Times Now", contested the suit by filing written statement stating inter alia, that the news was true and correct. However, the photograph of the plaintiff was shown in the said news item inadvertently without any intention or malice to defame the plaintiff. 3. The defendant, Times Global Broadcasting Company Limited being the owner of the news channel, "Times Now", contested the suit by filing written statement stating inter alia, that the news was true and correct. However, the photograph of the plaintiff was shown in the said news item inadvertently without any intention or malice to defame the plaintiff. It was further stated in the written statement that immediately after realizing the mistake committed by the defendant by showing the photograph of the plaintiff, withdrew the photograph of the plaintiff from the afternoon session as corrective measure and also issued corrigendum clarifying that the error of using plaintiff's photograph was inadvertent and therefore regretted. Such a corrigendum was also telecasted in the news channel on 01.09.2010 and therefore, cause of action for the suit did not subsist. 4. On the basis of the above pleadings of the parties, learned trial court framed the following issues: "(1) Whether the defendant has caused damages to the reputation, profession and calling of the plaintiff by the defendant's wrong action with an ulterior motive and malafide intention by repeated flashing of the plaintiff's picture in the defendant's News Channel on 30.06.2010 as the Home Minister of Nagaland? (2) Whether it is incumbent on the part of the defendant to verify and ascertain the authenticity of their news item before it is broadcasted in the news channel? (3) whether the corrigendum issued by the defendant can be accepted as an apology? (4) Whether the plaintiff is entitled to the relief(s) sought?" 5. Both the parties adduced evidence and after hearing the parties, learned trial court decreed the suit of the plaintiff. 6. Aggrieved, the defendant preferred the appeal. 7. The plaintiff also filed a cross objection challenging the quantum of award and seeking enhancement thereof as claimed in the plaint. 8. I have heard Mr. A. Sattar, learned counsel for the appellant/defendant and the learned Sr. Counsel Mr. T.B. Jamir for the respondent/plaintiff. 9. The undisputed facts reveal from the pleadings and evidence of the parties are that the defendant telecasted a news item on 30.06.2010 in its news channel, "Times Now" to the effect, that the Home Minister of Nagaland was detained at an Airport in Nepal for allegedly carrying Indian currency of impermissible limit. Counsel Mr. T.B. Jamir for the respondent/plaintiff. 9. The undisputed facts reveal from the pleadings and evidence of the parties are that the defendant telecasted a news item on 30.06.2010 in its news channel, "Times Now" to the effect, that the Home Minister of Nagaland was detained at an Airport in Nepal for allegedly carrying Indian currency of impermissible limit. In the said news item, the photograph of the plaintiff was shown in red circle purportedly as the Home Minister of Nagaland. The defendant having realized their mistake of wrongly displaying the photograph of the plaintiff, removed the photograph from the afternoon session on the same day. The plaintiff by issuing a notice demanded of the defendant to seek unconditional apology through the electronic and print media within two weeks of the receipt of the notice. After receipt of such notice, the defendant published a corrigendum in the newspaper entitled, Nagaland Post on 4.9.2010 as well as in the national daily, Times of India on 03.09.2010. A letter was also written by the defendant addressing to the plaintiff seeking apology and informing about the corrigendum. 10. Mr. A. Sattar, learned counsel for the appellant submitted that the news item was true. However, the photograph of the plaintiff was displayed in the said news item due to inadvertent error and mistake without any intention or malice and immediately after realizing such mistake, the photograph was removed. Mr. Sattar, further contended that as demanded by the plaintiff, the defendant issued apology by sending a letter dated 2.9.2010 and also published corrigendum in the newspaper as well as through the news channel and as such, there was no cause of action for instituting the instant suit. Mr. Sattar also contented, that no evidence was adduced to substantiate the claim for damage to profession and calling and therefore, at best, a nominal damages could have been awarded. 11. Par contra, Mr. T.B. Jamir, learned Sr. Counsel for the plaintiff submitted that the defamatory publication per-se is actionable and the intention or malice on the part of the defendant is immaterial in a suit for damages for defamation caused by libelous publication. Mr. 11. Par contra, Mr. T.B. Jamir, learned Sr. Counsel for the plaintiff submitted that the defamatory publication per-se is actionable and the intention or malice on the part of the defendant is immaterial in a suit for damages for defamation caused by libelous publication. Mr. Jamir, further submitted in support of the cross objection filed by the plaintiff/respondent that having regard to the damage caused to the reputation of the plaintiff, the decree should be interfered to the extent of enhancing the damages as sought by the plaintiff in the suit. 12. The law relating to defamation is well established. It is no doubt true that freedom of speech and expression enshrined in Article 19(1)(a) of the Constitution of India is a cherished right, but such right is not absolute and subjected to reasonable restriction and limitation. The law of defamation is a limitation upon the freedom of expression by dint of Article 19(2) of the Constitution, inasmuch as the reputation of a person is considered to be most-valuable property and recognized as an inseparable facet of the right to live under Article 21 of the Constitution. The Apex Court, dealing with the significance of right to reputation observed in Om Prakash Chautala Vs. Kanwar Bhan & Ors. reported in (2014) 5 SCC 417 as under: "Reputation is fundamentally a glorious amalgam and unification of virtues which makes a man feel proud of his ancestry and satisfies him to bequeath it as a part of inheritance on the posterity. It is a nobility in itself for which a conscientious man would never barter it with all the tea of China or for that matter all the pearls of the sea. The said virtue has both horizontal and vertical qualities. When reputation is hurt, a man is half-dead. It is an honour which deserves to be equally preserved by the down trodden and the privileged. The aroma of reputation is an excellence which cannot be allowed to be sullied with the passage of time. The memory of nobility no one would like to lose; none would conceive of it being atrophied. It is dear to life and on some occasions it is dearer than life. And that is why it has become an inseparable facet of Article 21 of the Constitution. No one would like to have his reputation dented. The memory of nobility no one would like to lose; none would conceive of it being atrophied. It is dear to life and on some occasions it is dearer than life. And that is why it has become an inseparable facet of Article 21 of the Constitution. No one would like to have his reputation dented. One would like to perceive it as an honour rather than popularity. When a court deals with a matter that has something likely to affect a person's reputation, the normative principles of law are to be cautiously and carefully adhered to. The advertence has to be sans emotion and sans populist perception, and absolutely in accord with the doctrine of audi alteram partem before anything adverse is said." 13. A Division Bench of this Court in SNM. ABDI Vs. Prafulla Kr. Mahanta & Ors, 2001 (3) GLT 427, dealing with the question, as to how reputation is cherished by a person, quoted few observations of the Apex Court from Kiran Bedi and Inder Singh Vs. Committee of Inquiry: (1989) 1 SCC 494 , in para 7, 8 & 9, which I am tempted to reproduce here as under: "7. ..................................................................... "The question of reputation and how it is cherished by a person that came up for consideration before the Apex Court in Kiran Bedi and Jinder Singh Vs. Committee of Inquiry (SC 714) where the Supreme Court quoted Bhagwad Gita and pointed out "akirtinchapi Bhutani Kathaishyanti te a Vyayam, Sambhavitashya chakirtir Maranadatricchyate (Men will recount thy perpetual dishonour and to one highly esteemed, dishonour exceeded death). 8. In [paragraph 24 of the judgment of the Supreme Court pointed out as follows.... The right to the enjoyment of a good reputation is a valuable privilege, of ancient origin, and necessary to human society, as stated in Libel and Slander S. 4 and this right is within the constitutional guarantee of personal security as stated in constitutional Law. S. 205, and a person may not be deprived of this right through falsehood and violence without liability for the injury as stated in Libel and slander S. 4." 9. In paragraph 25 of the judgment the Supreme Court quoted American Law reports - 55 page 171 in D.F. Marion - Vs.- Davis and pointed out as follows:- "25. S. 205, and a person may not be deprived of this right through falsehood and violence without liability for the injury as stated in Libel and slander S. 4." 9. In paragraph 25 of the judgment the Supreme Court quoted American Law reports - 55 page 171 in D.F. Marion - Vs.- Davis and pointed out as follows:- "25. The right to enjoyment of a private reputation, unassailed by malicious slander is of ancient origin, and is necessary to human society. A good reputation is an element of personal security, and is protected by the constitution equally with the right to the enjoyment of life, liberty and property, "so we find that the learned Asstt. District judge is correct in holding that the Article published (quoted above) is defamatory in nature and harmed the reputation of the plaintiff." 14. In a suit for defamation, the plaintiff needs to prove the following four factors. (i) the statement must be defamatory. (ii) it must refer to the plaintiff (iii) it must be published by the defendant (iv) the defamatory statement must be false. 15. As defined by Dr. Winfield "defamation is the publication of a statement which reflects on a person's reputation and tends to lower him in the estimation of right thinking members of society generally or tends to make them shun or avoid him." Thus, defamatory publication is one, which tends to lower a person in the estimation of right thinking members of the society, who may be even minority in number. A statement or publication is said to be libalus and defamatory, when it has tendency to injure the reputation of a person. 16. It is trite law, that intention of the defendant is immaterial in case of libelous publication, inasmuch as, defamation by way of publication of libelous article per se is actionable. It is to be mentioned here, that though, under English law, the wrong of defamation is distinguished between libel and slander, such distinction between libel and slander has not been recognized in India. Be that as it may, apparently displaying photograph of the plaintiff wrongly connecting the same with an offensive news was certainly a libelous publication and therefore it was actionable by itself. 17. Be that as it may, apparently displaying photograph of the plaintiff wrongly connecting the same with an offensive news was certainly a libelous publication and therefore it was actionable by itself. 17. Admittedly, in the instant case, the defendant telecasted a news item that the Home Minister of Nagaland was detained in the Airport of Nepal, while carrying impermissible limit of Indian currency and the photograph of the plaintiff was displayed in red circle purportedly projecting him as the Home Minister of Nagaland. Admittedly, the news item was true and correct so far the Home Minister of Nagaland was concerned, by which an offensive allegation was imputed to the Home Minister of Nagaland. Therefore displaying the photograph of the plaintiff in red circle in connection with such an offensive news item was obviously libelous, so far the plaintiff was concerned, as it had the tendency to injure the reputation of the plaintiff. Though the defendant claims to have displayed the photograph of the plaintiff due to mistake or inadvertent error, such displaying of the photograph of the plaintiff projecting him as the Home Minister of Nagaland, without due care and caution, demonstrated utter irresponsibility and gross negligence on the part of the defendant. 18. It should be borne in mind, that a libelous and defamatory publication in electronic visual media with photograph of a person is more vulnerable than the publication of a libelous matter in a newspaper or any other print media. Because, newspaper or other written articles are usually read by literate and educated persons, who can comprehend and adjudge the contents therein, whereas, the electronic visual media is open to all, irrespective of literate or illiterate. Therefore, even though a photograph is displayed wrongly in connection with an offence or a defamatory news in the electronic visual media, the viewers, more particularly, the illiterate section of the viewers, in all probability, would comprehend that he is the person, whose photograph is shown, has committed the alleged offence referred in the news item. Therefore, in my considered view, displaying of the photograph of the plaintiff in red circle with an offensive or derogatory news item, as indicated above was prima facie defamatory so far the plaintiff was concerned, inasmuch as, he was no way connected with the news item. 19. Therefore, in my considered view, displaying of the photograph of the plaintiff in red circle with an offensive or derogatory news item, as indicated above was prima facie defamatory so far the plaintiff was concerned, inasmuch as, he was no way connected with the news item. 19. As per the second requirement, there is no dispute that the photograph of the plaintiff was displayed with an offensive and defamatory news item, with which the plaintiff was no way connected and therefore, admittedly, the defamatory publication referred to the plaintiff. It is undisputed that the publication was made by the defendant in their news channel. It was also undisputed that the photograph of the plaintiff was displayed wrongly in connection with a defamatory news item, to which plaintiff was no way connected and therefore, evidently and admittedly, such libelous publication was false and untrue, so far, the plaintiff was concerned. 20. When the reputation of the plaintiff was injured due to utter irresponsible and negligent act of the defendant, the plaintiff would certainly be entitled to damages and as such, I find no reason to disagree with the finding of the learned trial court with regard to the issue as to whether the plaintiff was defamed by libelous publication of his photograph and that he is entitled to damages for such injury caused to the reputation of the plaintiff. Mr. Sattar, contends that when the defendant sought apology, which was not rejected by the plaintiff, the cause of action for the suit did not survive, inasmuch as the apology amounted to complete discharge of the defendant's liability to the plaintiff in the instant suit for damages for defamation. In order to buttress the submission, Mr. Sattar has placed reliance on the following decisions: 1. K. Ramdas Shenoy Vs. The Chief Officer, Town Municipal Council, Udipi & Ors.; AIR 1976 SC 994 2. Arun Kumar Krishnarao Balpande Vs. Wasudeorao Kondbaji Gamar & Ors.; 1996 Cri.L.J. 1091 3. K.P. Narayanan & Ors. Vs. Mahendrasingh Kundansingh; AIR 1957 Nagpur 19 21. The case of Arun Kumar (supra) and K. Ramdas Shenoy (supra) relate to contempt proceeding before the court and apology tendered in the contempt proceeding and therefore, these two decisions, in my considered view are of not much help to the defendant. 22. K.P. Narayanan & Ors. Vs. Mahendrasingh Kundansingh; AIR 1957 Nagpur 19 21. The case of Arun Kumar (supra) and K. Ramdas Shenoy (supra) relate to contempt proceeding before the court and apology tendered in the contempt proceeding and therefore, these two decisions, in my considered view are of not much help to the defendant. 22. In K.P. Narayanan (supra), where the defendant published contradiction and expressed regrets in respect of the alleged defamatory news item, Hon'ble Nagpur High Court observed that publication of contradiction or expression of regret by itself does not tantamount to apology. The Hon'ble Nagpur High Court held as under: "15. The next question is whether there has been complete satisfaction as contended for by the defendants. It is said that an apology tendered and accepted amounts to a complete discharge of the defendants and bars the suit. No doubt where there is an apology and an acceptance thereof, the defendant can resist the plaintiffs suit for damages. Here however no apology in the proper sense of the term was at all tendered prior to the suit. The publication of the 'contradiction' and expression of regret in three issues of the paper is not tantamount to apology. Further, no evidence has been tendered to show that the publication of the contradiction was accepted by the plaintiff as a complete satisfaction for the injury sustained by him." 23. In the instant case, admittedly the news item with the photograph of the plaintiff was telecasted on 30.06.2010 and the plaintiff by issuing notice dated 18.08.2010, proved as Ext. 1 demanded unconditional apology from the defendant. The notice (Ext. 1) reads as under "Sub: Notice for Demand of Apology Sir, With deep anguish, I write this letter to you demanding an unconditional apology from your news channel for repeatedly flashing my picture in your news channel showing my photograph, encircled in red, as the Home Minister of Nagaland, who was detained at Nepal airport. The said news item was flashed on your news channel on 30-06-10 from morning till afternoon. The use of my photograph by your news channel, without my consent and without properly ascertaining the identity, has greatly damaged my image, reputation, profession and calling, in the eye of the public. The said news item was flashed on your news channel on 30-06-10 from morning till afternoon. The use of my photograph by your news channel, without my consent and without properly ascertaining the identity, has greatly damaged my image, reputation, profession and calling, in the eye of the public. You are therefore, requested to offer an unconditional apology within 2 weeks of the receipt of this notice through the medium of your news channel, as well as through the print media (i.e. National & State) failing which I shall be compelled to initiate necessary proceeding against your news channel. Kindly acknowledge receipt. Yours faithfully (Imkongnukshi Imchen)" 24. Pursuant to the said notice, the defendant issued corrigendum in the Nagaland Post, a local daily of Nagaland in its issue dated 04.09.2010 and in the National daily, Times of India in its issue dated 03.09.2010, which have been proved as Ext. 3. The corrigendum published in the newspapers was as follows: "Corringendum Times Now incorrectly used the picture of Mr. Imkongnukshi Imchen. Incorrect usage of Mr. Imchen's picture as Nagaland Home Minister is regretted." 25. The defendant has also proved a letter dated 02.09.2010 as Ext. 2, addressed to the plaintiff, where the defendant stated that: "By this letter we unreservedly apologize for inadvertently showing your picture, instead and in place of the Nagaland Home Minister Mr. Imkongnukshi Imchen on June 30, 2010 on our channel Times Now. The inadvertent error was completely unintentional, without any prejudice on our part. We have, in good faith and spirit, published a corrigendum on the channel on September 1, 2010 which carried the following text." 26. It appears from the notice (Ext. 1) issued by the plaintiff that the plaintiff demanded an unconditional apology through the news channel as well as through print media (National and State). It was also stated in the notice, that in case of failure on the part of the defendant to tender such apology through the media as above, the plaintiff shall be compelled to initiate necessary proceeding against the defendant. 27. Learned trial court while dealing with the Issue No. 3, whether the corrigendum issued by the defendant can be accepted as an apology, held that the corrigendum issued by the defendant cannot be construed as apology demanded by the plaintiff. The trial court observed as under: "11. 27. Learned trial court while dealing with the Issue No. 3, whether the corrigendum issued by the defendant can be accepted as an apology, held that the corrigendum issued by the defendant cannot be construed as apology demanded by the plaintiff. The trial court observed as under: "11. There is no dispute that the above corrigendum were issued within the period of two weeks on receipt of the notice by the defendant. However, the above corrigendum cannot be said to be an apology by any stretch of imagination. The meaning of corrigendum is 'a thing to be corrected', 'an error to be corrected' whereas an apology is the regretful acknowledgement of offence or failure; an explanation. The above corrigendum lacks any explanation as to how, when, and where the picture of the plaintiff was used." 28. In K.P. Narayanan & Ors. Vs. Mahendrasingh Kundansingh (supra), relied by the learned counsel for the appellant, Nagpur High Court held, that where there is an apology and an acceptance thereof, the defendant can resist plaintiff's suit for damages for defamation. However, publication of the contradiction and the expression of regret by itself does not tantamount to an apology. In the present case also, by publishing the corrigendum as reproduced above, the defendant only regretted the use of photograph of the plaintiff incorrectly as the Home Minister of Nagaland. There is no apology in such corrigendum (Ext. 3). Ext. 2 letters addressed to the plaintiff by the defendant can also by no stretch of imagination be considered as apology, demanded by the plaintiff by Ext. 1 notice. Apparently, no evidence was adduced by the defendant to show that such corrigendum was accepted by the plaintiff as apology demanded by him. Therefore, I am in agreement with the learned trial court that the corrigendum issued in the present case by the defendant, cannot be construed as apology as demanded by the plaintiff. Having said so, the next question remained to be answered as to what ought to have been damages to be awarded to the plaintiff. 29. The damages usually may be general or presumptive damages and special damages. Special damages is one, which is required to be pleaded and proved, inasmuch as, such damages are capable of measurement or computation, whereas, general damages are presumptive damages which is not capable of actual measurement or computation. 29. The damages usually may be general or presumptive damages and special damages. Special damages is one, which is required to be pleaded and proved, inasmuch as, such damages are capable of measurement or computation, whereas, general damages are presumptive damages which is not capable of actual measurement or computation. When an injury or damage is caused to the reputation of a person or in respect of personal injury, general damages is presumed by law. The reputation of a person is obviously a thing which is incapable of scientific measurement and therefore general damages is awarded by the Tribunals for such injury to the reputation or any other personal injury on the basis of presumption, subject, however, to certain established principles and guidelines laid down in various judicial pronouncement. Unlike general damages, there is no presumption of special damages. Special damages is required to be pleaded and proved. Unless there is specific pleadings and proof as to any special damage, there is no question of awarding any special damages. Though the plaintiff has claimed the damages on both counts i.e. general and special, neither there was any specific pleading nor any evidence was brought on record as to any specific injury or loss to the profession and calling of the plaintiff and in absence of such pleading and evidence, the plaintiff could not be entitled to any special damages. Therefore, only damages, which could be awarded in the instant case is general damages or presumptive damages, which is not capable of any scientific measurement and has to be awarded on the basis of assumption and presumption of the court. The general damages may be nominal or exemplary. Exemplary or punitive damages is awarded, where there is great damage by reason aggravated circumstances accompanying the wrong done to the plaintiff. Whether a compensation should be nominal or exemplary would depend on various factors including the nature of publication, the mitigating circumstances, conduct of the parties, etc. In the instant case, evidently though the photograph of the plaintiff was wrongly displayed in the news item, the same was removed by the defendant suo-moto on the same day, from afternoon upon realizing the mistake. In the instant case, evidently though the photograph of the plaintiff was wrongly displayed in the news item, the same was removed by the defendant suo-moto on the same day, from afternoon upon realizing the mistake. Apparently, the defendant also published two corrigendum expressing regrets which certainly can be considered as a mitigating circumstances, though it might not be an apology as demanded by the plaintiff to be complete discharge of liability of the defendant to the plaintiff for defamation. Though, intention to publish a defamatory article is immaterial, but absence of intention or malice and subsequent corrective measures also may be considered as mitigating circumstances so far the question of compensation or damages is concerned. Having regard to the facts that there was no intention or malice on the part of the defendant, that the defendant of their own corrected the mistake by removing the photograph from the news and also publication of corrigendum as well as the apology sought by the letters (exhibit-02), this does not appear to be a case, in my considered view, to award an exemplary or punitive damages. Having taken note of all the mitigating circumstances, as indicated above and the injury caused to the reputation of the plaintiff, this court is of the view that damages amounting to Rs. 10,00,000/- (Rupees ten lakhs) shall be just and reasonable. Accordingly, the appeal filed by the defendant is partly allowed by modifying and reducing the damages to Rs. 10,00,000/- (ten lakh). 30. In the teeth of the discussions made herein above, the cross objection is found to be without merit and accordingly stands dismissed. The appeal filed by the defendant stands partly allowed. 31. Prepare the decree. 32. It is submitted by the learned counsel for the appellant that Rs. 50,00,000/- is deposited with the Registry of this court at the time of admission of the appeal. The balance amount in excess of satisfaction of the decree as above be returned to the appellant.