By SRI.K. VIJAYAKUMARAN, PRESIDENT.<br /> <br /> <br /> This is a complaint alleging professional negligence against the opp.party with compensation<br /> <br /> The averments in the complainant can be briefly summarized as follows:<br /> <br /> The complainant is an illiterate widow aged 84 years. Her son is mentally ill and there is nobody else look after them. She is a kooli living on meagure income obtained from fish trade. The complainant and her son are residing in house in 10 cents which was pledged with the Kollam District Co-operative Bank for raising money for the treatment of her son. The total loan amount was 30,000/- out of which 9,000/- was repaid. The Bank proceeded against the complainant for defaulting repayment of the loan and filed a case before the Arbitrator as ARC 186/98 and without her knowledge obtained an exparte order charged on her property. The complainant thereupon approached the opp.party who is a friend of her and a Congress leader and handed over the relevant records. The opp.party promised her that a stay order can obtained by filing an appeal before the Co-operative Appellate Tribunal. He also obtained her signature in white paper. He has made her believe that everything can be solved. But on 19.3.2001 the Special sale officer came to her house and seized her moveable property and sold them. Thereupon the complainant again approached the opp.party who obtained her signature in certain papers. There after the sale officer without the knowledge of the complainant sold her property to one Thulaseedaran Pillaim S/o. Gopala Pillai of Kottamkara Village. Out of the sale proceeds Rs.74.000/- was taken by the bank. Thereafter the said Thulseedharan and his goondas are threatening the complainant and they have taken possession of her property. The complainant on several occasions approached the opp.parties and on those occasion the opp.party assured her that property can be recovered. Towards the expenses of the case, the opp.party has received more than Rs. 5,000/- from the complainant. The complainant’s property would have fetched at least Rs. 5 lakhs. It is only recently when she enquired that she come to know that the opp.party has not filed any appeal before the Appellate Tribunal. Without filing appeal the opp.party has prepared certain complaints for the police inspector, District Collector, Bank Manager etc and obtained the signature of the complainant without reading out the contents. When the complainant met other advocates she was told that either the Minister or District Collector or the Bank Manager or Polic Officer have no authority to stay or cancel the Co-operative awards but only Co-operative Tribunal or the High Court have jurisdiction for the same. The opp.party without filing the appeal before the Co-operative Tribunal has deceived the complainant and thereby committed deficiency in service. The complainant due to the acts of the opp.parties sustained a loss of Rs. 6,08,000/-. Hence the complaint<br /> <br /> The opp.party filed a version contending interalia, that the complaint is not maintainable either in law or on facts. This Forum has no jurisdiction to entertain the complaint. The averments in para 1 of the complaint are lnot correct and hence denied. The complainant has the knowledge, awareness and common sense to deal with the matter mentioned in the complaint. She has got the capacity to take prudent decisions. She is some way related to the opp.party. The loan amount availed by the complainant from District Co-operative Bank is not for the treatment of her son. The bank had granted the loan for the improvements of Coir Yarning works. Towards security for the loan , she had mortgaged her 10.5 cents of property in Sy.No.3607/3, 3607/9 of Chavara Village The loan of Rs.30,000/- was availed by her on 13.7.1994. Out of the loan amount and interest she has repaid an amount of Rs.9,500/-. Since the complainant heavily defaulted in repayment of instalments the Bank filed Arbitration case as ARC No.186/98 for the realization of the loan amount which was decided on 28.5.1998. The opp.party came to know about the award when the complain ant approached him with the grievance that bank in Execution of the Arbitration award attached her movable property and sold the same on 19.3.2001. The averments in para 3 of the complaint are not true and hence denied.. The complainant approached the opp.party for the first time with the grievance of passing of the award after 19.3.2001. On that day the opp.party prepared an application for getting certified copy of the award and gave it to her and she obtained the copy of the award. After going through the copy of the award the opp.party instructed the complainant that there is provision for filing appeal before the Co-operative Tribunal against the award and that if stay of the execution of the award is to be granted by Co-operative Tribunal, 20% to 30% of the award amount has to be deposited. The complainant expressed her inability to remit any amount for the grant of stay. Left with no other alternative and in an earnest attempt to help her the opp.party prepared the petitions for sending the same to the Co-operative Minister, Chief Minister, Joint Registrar, Sale Officer, the Bank etc. requesting to wave the interest of/ write off the loan amount and handed over the same to the complainant along with copies of the petitions. Considering the pathetic situation the complainant was placed the authorities concerned extended a helping hand and to settle the matter amicably. Even then the complainant had no money to settle the same for which the opp.party is not at all liable or responsible. The opp.party has not received single paise from the complainant for preparing the petitions for different authorities or any other purpose. The opp.party who is a leader of Congress Party is the General Secretary of INTUC District Committee. He contested and was elected as member of Kollam District Panchayath Committee from Chavara constituency. The complainant is permanently residing in Chavara constituency. Considering all these circumstances the opp.party prepared the petitions with a view to save the complainant . The opp.party reasonably apprehends that the complainant has been took into confidence by somebody who is bent upon tarnishing the political and professional image of the opp.party. The complainant approached the opp.party only after attachment and sale of her movable property in execution of the award. The averments in para 4 of the complaint are also false and hence denied. It is true that the complainant approached the opp.party even after the sale of the property and on all those occasions the opp.party informed the complainant that all that the opp.party could do was to sent representations to the authorities and that if no action was taken by them he cannot do anything. The allegations that the opp.party made her to believe that he would restore the property back is falsehood. But all along the complainant was taking a stand that she being a poor lady, was entitled to get the entire award amount and interest written off. The further allegation in that paragraph that the opp.party had accepted an amount of more than Rs.5,000/- from her towards fees and expenses is false and hence denied. There was no need, occasion or circumstances for the receipt of such an amount from her. The averments in para 5 are not known to this opp.party. The opp.party cannot be held liable or responsible for the auction sale of the property of the complainant The averments in para 6 of complaint are false. The complainant is well aware of the fact that no appeal was preferred before the Co-operative Tribunal. The opp.party has not collected any records from her for filing appeal. This opp.party was compelled to write the petitions to the authorities with the intention of getting the interest waived or to get write off of the amount due to the Bank. This opp.party was never engaged by the complainant to file appeal before the Co-operative Tribunal. The averments in para 7 are also false. The averments are made with the intention of casting the liability of the sale of her property on the opp.party on the advice of some one else. The complainant was fully aware of the fact that no appeal was filed against the order in ARC 186/98. This opp.party cannot be held liable non filing of the appeal before the Co-operative Tribunal. The allegations in para 8 are false and hence denied. This opp.party has not committed any deficiency in service. The averments in para 9 of the complaint that the complainant lost her property worth Rs.5,00,000/- and she sustained a loss of Rs.5,000/- towards the fee etc and suffered mental agony and hardships are false and hence denied. The opp.party has not done any act resulting in the alleged losses to the complainant. The complainant is not entitled to get any relief sought for in the complaint. The opp.party is not liable to pay Rs.6,08,000/- or any part thereof to the complainant. This amount is claimed with the intention of making unlawful enrichment and also to tarnish the political and professional image of the opp.party. The opp.party is having 25 years of practice as an Advocate. The opp.party has been doing his practice keeping professional ethics. No complaint has ever been raised against the opp.party by any client during these periods. The allegations made in the complaint are wild enough to damage the reputation gained by the opp.party as an advocate and as a politician. This complaint has adversely affected the opp.party in several ways. The allegations that the complaint are false and vexatious and is liable to be dismissed with costs.<br /> <br /> <br /> <br /> Points that would arise for consideration are:<br /> <br /> 1. Whether there is any deficiency in service on the side of the opp.party<br /> 2. Relief and costs.<br /> <br /> <br /> <br /> <br /> Points: 1. As a matter of fact there is no dispute that the complainant approached the opp.party for legal advice in connection with arbitration case ARC 186/98. Opp.party has admitted his fact in paras 5 and 6 of the version that he prepared an application for certified copy of the order in ARC 186/98 on 19..3..2001 and entrusted the same with her and she produced the copy of award before him on 26.5.2001. It is further stated in the same para that after perusing the award he instructed the complainant that there is provision for filing Appeal/Revision before the co-operative Tribunal against the award and that if stay of execution of award is to be granted by Co-operative Tribunal 20% to 30% of the award amount has to be deposited and since the complainant expressed her inability to raise the amount for such deposit he prepared petitions for sending the same to the Co-operative Minister, Chief Minister, Joint Registrar, Sale Officer, the Bank etc to waive the interest/write off the loan amount.<br /> <br /> <br /> <br /> Admittedly the opp.party is a practicing lawyer having 27 years standing. In cross examination the opp.party admitted that he is familiar with the Act and Rules relating to Co-operative Societies and the procedure relating to filing of appeals before the Co-operative Tribunal. He would further state in cross examination that he do not remember the provision of the Co-operative Societies Act which mandates the deposit of 20% to 30% of the award amount. To a suggestion of the learned counsel for the complainant that there is no such provision in the Co-operative Societies Act or Rules he admitted that for appeal there is no such provision. If that be so there is no reason as to why the opp.party instead of filing an appeal prepared petitions for being submitted to Ministers, Joint Registrar Bank etc.<br /> <br /> It is obvious that the complainant has approached the opp.party seeking legal advice in respect of the award in ARC 186/98. As pointed out earlier DW.1 has admitted in cross examination that he is familiar with the provisions of Co-operative Societies Act and Rules regarding filing of appeal. The contention of the learned counsel for the complainant that the authorities to whom representations were prepared by the opp.party has no jurisdiction to interfere with the award and that the Co-operative Tribunal or High Court alone have jurisdiction is not disputed by the opp.party. Every prudent lawyer in such circumstances would advice the client to file an appeal or revision rather than approaching the authorities who have no jurisdiction to interfere with the award. There is considerable force in the opp.party’s contention of the complainant that the opp.party’s above action is not because of any ignorance in the provisions of law but because of certain extraneous reasons. As argued by the complainant the conduct of opp.party in not preparing an appeal to redress the grievance of the complainant is nothing but deficiency in service.<br /> <br /> It is argued by the opp.party that the complainant has not executed any vakalath in his favour and therefore he can not be held liable for deficiency in service. In my view the question of executing vakalath arises only at the time when the appeal is to be filed and for giving legal opinion no vakalath is required. It is well established principle of law that admitted facts need not be proved. DW.1 has categorically admitted in his version as well as in cross examination that the complainant has approached him in connection with the award in ARC 186/98. When a party approaches an advocate in connection with a case it is obvious that he is seeking legal advice and as I said earlier for giving legal opinion execution of a Vakalath is not at all necessary. The opp.party has no case that the appeal was not filed as the complainant refused to execute vakalath. The opp.party cannot seek shelter under non-execution of vakalath to get himself absolved of his liability.<br /> <br /> The contention of opp.party is that the complainant is not a consumer within the meaning of Section 2 [1] [d] of Consumer Protection Act 1986 as the service of the opp.party was availed without consideration. That contention also does not appeal to me. PW.1 has stated that she paid Rs.5,000/- in this regard. In further cross she has stated that the amount was paid to the clerk of the opp.party, towards transportation charges etc. It is to be noted that the consideration need not be in terms of money. DW.1 admitted that the complainant is related to him. DW.1 further admitted that he has prepared certain petitions for the complainant. It is not forthcoming as to what is the consideration for preparing such representations. It can be the relationship . It is not disputed that the complainant is an illiterate old woman aged 86 years. It is quite probable that such a person must have an impaired memory, hearing and sight. PW.1 in cross examination stated in answer to a leading question Opp. Party യെ എത്ര രൂപയനു എല്പിചതു ? she answered 5000/- രൂപയൊലം എല്പിചു. In further cross examination she has stated that കരു കൂലിയും മട്ടുമാനു ചെലവയതു. The word മട്ടും has also much significance. When a witness just like PW.1 is subjected to searching cross examination such discrepancies are quite probable and in my view the discrepancies pointed out in the evidence of PW.1 will not materially affect her evidence. On a careful consideration of the entire evidence I am of the view that the opp.party failed to act as a prudent lawyer and as such there is deficiency in service on the side of the opp.party. Point found accordingly.<br /> <br /> <br /> <br /> Points 2:<br /> <br /> <br /> The complainant is claiming more than Rs. 6 lakhs as compensation including the value of her property etc for which she is not entitled to. Taking all aspects into consideration I am of view that a sum of Rs.10,000/- would be sufficient compensation for the deficiency in service on the side of the opp.party.<br /> <br /> <br /> <br /> In the result the complaint is allowed in part directing the opp.party to pay a sum of Rs.10,000/- to the complainant as compensation and Rs. 1,000/- towards costs. The order is to be complied with within one month from the date of this order.<br /> <br /> <br /> <br /> <br /> Dated this the 13th day of November, 2008.<br /> <br /> <br /> <br /> I N D E X<br /> <br /> List of witnesses for the complainant<br /> PW.1. – Retnamma<br /> List of documents for the complainant<br /> P1. Application<br /> P2. Application to Bank General Manager<br /> List of witnesses for the opp.party<br /> DW.1. – G. Sethunathan Pillai<br /> List of documents for the opp.party<br /> List of documents for the opp.party<br /> D1. – Writ petition.<br /> <br />