SRI.K. VIJAYAKUMARAN, PRESIDENT.
Complaint seeking a direction to the opp.party to refund the Advocate Fee collected from the complainant, compensation and costs.
The averments in the complaint can be briefly summarized as follows:
The complainant is an unemployed lady and she belong to Latin Catholic community. She has registered her name in the Employment Exchange, Kollam. She has completed Pre-Degree course . On 22.9.2007 she was called for an interview for the post of Part-time Sweeper under the Fire and Rescue Service. Though she performed well in the interview and inspite of the fact that she was rank No. 1 in the list furnished by the Employment Exchange, she was not selected. On 9.11.2007 she sent a complaint to the Divisional Fire Officer, Thiruvananthapuram for which no reply was received. Subsequently she come the to understand that the concerned officers and politicians after accepting bribe posted another lady ignoring seniority and qualification To challenge the illegal act, she approached the opp.party for filing a Writ Petition before the High Court. She handed over the records and paid Rs.5,000/- to the opp.party towards Advocate fee. The opp.party on 26.11.2207 filed WP[C] No.35172/07 in the High Court. The above Writ Petition was allowed with a direction to the Divisional Fire Officer to consider the application of the complainant and take a decision. But her application was dismissed by the Divisional Fire Officer, Thiruvananthapuram. When she went to the opp.party he advised her to file a new writ petition. Accordingly WP[C] No.12123/08 was filed . For filing this Writ Petition she gave Rs.3,000/- towards advocate fee. Though the illegally appointed person Lillykutty was also impleaded in the writ petition there was no proper prayer in the writ petition. The opp.party has also not collected the appointment order and mark sheet of the candidates participated in the interview and produced the same in the High Court. The opp.party has also not given proper legal opinion. The 2nd writ petition was dismissed on 9.4.2008. In the writ petition also the opp.party has not challenged the appointment of Lillikutty. No advise was also given to the complainant for collecting the relevant materials under the Right to Information Act. Hence the opp.party has failed to observe the professional skill expected of an advocate which is deficiency in service. Hence the complaint.
The opp.party filed version contending, interalia, that the complaint is not maintainable either in law or on facts. There is no consumer relationship between the parties herein as no consideration was given by the complainant to the opp.party. The opp.party is a practicing lawyer before the High court of Kerala since 1996. He is a committed and devoted lawyer to the profession and is also engaged in conducting cases for and on behalf of poor and needy persons as a matter of service. He is also a Senior Panel Advocate of Kerala State Legal Service Authority under the High Court Legal Service Committee. The complainant has been introduced to the opp.party by his friend one Mr. Sreevalsa Kumar. The complainant’s husband herein approached the opp.party with a recommendation letter from the said Sreevalsa Kumar wherein it was stated that the complainant belongs to financially backward family and hence to do the needful. Therefore, he has agreed to take up the Vakalath of the complaint. The complainant wanted to challenge the appointment of another candidate by the Fire Force Department alleging corruption and Nepotism. After hearing the matter the opp.party agreed to file a Writ Petition before the High Court. Accordingly the opp.party initially drafted a representation to the Divisional Officer Fire and Rescue Services, Southern Range, Thiruvananthapuram requesting him to conduct an enquiry into the matter of selection to the post of Part Time Sweeper at the Fire and Rescue Station, Kadakkal, held on 22.9.2007 and to direct the Asst. Divisional Officer to appoint the complainant to the post. Since there was no reply or response from the Divisional Officer the opp.party filed WP[C] No.35172/07 on 26.11.2007 before the High Court with a prayer to direct the Divisional Officer to consider the representation dt. 9.11.2007. At the time of filing the Writ Petition the opp.party has not received any amount towards Advocate fee. The Writ Petition was admitted in the file and after hearing the High Court was pleased to issue an order directing the Divisional Fire Officer, Thiruvananthapuram to consider the representation of the complainant. On the basis of the above direction the Divisional Fire and Rescue Office, Thiruvananthapuram has considered her representation and it was dismissed on merit. The complainant was not satisfied with the dismissal order and she again met the opp.party to file another Writ Petition challenging the order of the Divisional Fire and Rescue Officer. The opp.party properly appraised the complainant about the scope of that Writ Petition and tried to convince that there is no likelihood to have a positive order in favour of the complainant. However the complainant has compelled the opp.party to file the Writ Petition at her own risk . This time also the opp.party has not received any fee. The Writ Petition No.12123/08 filed by the opp.party was also finally heard and it was dismissed on 9.4.2008 on merit. There is no lapses or delay on the part of the opp.party in dealing with the Writ Petitions. The complainant again requested to file a Writ Appeal for which the opp.party was hesitant . Then the case records were demanded by the complainant and the opp.party handed over the records to her . Subsequently he received the notice from this Forum This complaint is filed with intention to blackmail the opp.party and tarnish his reputation. The complainant has not produced any receipts or documents towards acknowledgement of any fees or consideration. There is no basis and bonafides for this complaint and accordingly the opp.party prays to dismiss the complaint with compensatory costs..
Points that would arise for consideration are:
1. Whether there is deficiency in service on the part of the opp.party
2. Relief and costs.
For the complainant PW.1 is examined. Ext.P1 to P6 are marked.
No Oral evidence for the opp.party. Ext. D1 to D7 were marked
POINTS
There is no dispute that the opp.party has accepted vakalath of the complainant and filed 2 writ petitions before the High Court. The Writ Petitions were filed challenging the appointment of a Part-time sweeper in the Fire and Rescue Office, Kadakkal Both these Writ petitions were disposed by the High Court on merit. The case of the complainant was that though she was the senior most candidate recommended by the Employment Officer, Kollam and having required qualification she was not selected for appointment due to the corruption and nepotism on the part of the officers concerned. It appears that the complainant is under a wrong notion that seniority of the candidate alone is the criterion for appointment. The selection of a candidate recommended by the Employment Exchange and appointment of such persons is the descrtion of the appointing authority and simply because a candidate is not selected it cannot be presumed that there is some malafides or malpractice in the selection and appointment. It is challenging the appointment of another candidate by the Divisional Fire Officer that the writ petitions were filed on behalf of the complaint by the opp.party.
Ext. D5 is the order in the Writ Petition filed by the opp.party for the complainant the order would show that the writ petition was allowed and the appointing authority was directed to consider aExt.D4petition given by the complainant in this regard. Thereafter, the Divisional Fire Officer disposed of the application in the light of Ext. D5 order and being aggrieved by that order, the complainant again approached the opp.party for filing another writ petition and accordingly opp.party filed WP[C] No.12123/08 . Ext. D6 is the order in that writ petition. Ext. D6 also clearly shows that the writ petition was dismissed by the High Court on merit after hearing both sides and was not on any default. Ext.D6 shows that the High Court observed that the petitioner cannot be heard to say that she is best suited candidate for appointment as Part-Time Sweeper It is well settled that when cases are disposed by courts on merit the party cannot claim that she sustained any injury due to any negligence or deficiency in service on the part of the lawyer who conducted the case and reliance can be drawn from the decision of Kerala State Consumer Disputes Redressal Commission reported 1999 [II]CPR 364. In Narasimha Narayan Shrodkar V/s. Ajith N. Jakahadi and others the National Commission has held that if lawyer had committed on act of negligence as distinct from any mistake then he could be accountable but in the absence of any evidence to show any act of negligence on the part of opp.party, no deficiency in service can be attributed on the advocate. In this case in our view the the complainant failed to bring out any negligence on the part of the counsel. The High Court has also not attributed any lack of skill or deficiency in service on the part of the Advocate in conducting the case. No advocate can assure a favourable order to the party in a case because the judgement in the case is being pronounced by the court and not by the counsel. Mere averments in the complaint unsupported by any material, worth believable will not establish deficiency in service on the opp.party. In this context it is worth pointing out that the Writ Appeal filed by the complainant against Ext. D6 order through another counsel was also dismissed by High Court evidenced by Ext. D7 which would establish that the dismissal of her Writ Petition was not due to the negligence of opp.party but due to lack of merits in the case. The available materials shows that the opp.party has properly conducted the case and there is no negligence or deficiency in service on his part.
Another contention of the opp.party is that the complainant is not maintainable as there is no consumer relationship. It is argued that though the complainant would say she has paid fee to the opp.party for filing the complaint, there is absolutely no material to show passing of consideration. No oral evidence was also adduced in this regard. It is further contended that the opp.party is an empanelled Senior Legal aid counsel appointed by the Legal Service Committees, High Court of Kerala for conducting cases free of charges to poor and needy clients and Ext. D1 and D2 would substantiate this fact and that opp.party has not accepted fee from the complainant who was introduced to him by a friend of his who requested to accept the vakalath of the complaint who is financially very poor evidenced by Ext. D3. According to the complainant she is unable to produce evidence for having paid Advocate fee to opp.party as none of the Advocate are issuing receipt for fees received. Merely because the opp.party has not accepted fee it cannot be said that there is no consideration because consideration need not be in terms of money. When the opp.party has accepted vakalath it may be in consideration for something and therefore we are not inclined to accept the contention that there is no consumer relationship between the complainant and the opp.party. Even assuming that the opp.party has received fee in the absence of any material to show that he was negligent in the conduct of the case, no deficiency in service can be attributed on him. There is force in the contention of the opp.party that this complaint is filed to tarnish his image as no complaint filed against the counsel who filed the Writ Appeal which was also dismissed. On a careful consideration of the entire evidence in this case, we are of the view that this complaint is actuated by malafides. The complainant failed to establish any deficiency in service on the side of the opp.party. Point found accordingly.
In the result the complaint is dismissed with compensatory cost oRs.1,000/- to the opp.party
Dated this the 27th day of November, 2010.
I N D E X
List of witnesses for the complainant
PW.1. – Nirmala
List of documents for the complainant
P1. – Letter C2/PT/28/07 dated 25.7.2007
P2. – P2. – Certificate
P3. – Copy of Judgement in WPC No.35172/07
P4. – Copy of Employment card
P5. – Page No.3 of S.S.L.C Book
P6. – Copy of Judgement in WPC No.12123/08
List of Witnesses for the opp.party: NIL
List of documents for the opp.party
D1. – Certificate issued by High Court Legal Service Authority
D2.- Certificate dt. 26.7.2007 issued by the Secretary, High Court, Legal Authority
D4. – Representation dt. 9.11.07 submitted to the Divisional Officer, Fire and Rescue Service
Thiruvananthapuram.
D3. – Copy of letter dt.9.11.2007 issued by Siva Valsa Kumar to Adv. Sivaraj
D5. – The order of the High Court of Kerala in WPC No.35172 dt. 10.12.08
D6. – The order of the High Court of Kerala in WPC No.12123/08 dt. 9.4.2008
D7. – The Order of the High Court of Kerala in Writ Appeal No.2129/08 dt. 4.11.08
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