District Consumer Disputes Redressal Forum Civil Station, Palakkad – 678 001, Kerala Dated this the 27th day of January, 2009 Present: Smt.Seena.H, President Smt.Preetha.G.Nair, Member Smt.Bhanumathi.A.K, Member CC. No.86/2007 N.R.Surendran, S/o.Raman alias Karuppan, Nayikkamthodi, Cherukkode Post, Vallapuzha, Pattambi, Palakkad. - Complainant Vs Advocate John John, Tailor Street, Near Sharada Nursing Home, Palakkad. - Opposite party (By Adv.A.P.Udayakumar) O R D E R By Smt.Seena.H, President The case of the complainant in brief is as follows: Complainant entrusted the opposite party to conduct a sessions case before the Hon'ble Additional Session Court, Palakkad. An amount of Rs.3,000/- was paid to the opposite party towards fee. The grievance of the complainant is that opposite party never appeared before the court for conducting his case, not even on the date on which order was pronounced. Complainant was convicted in the said case for a rigorous imprisonment for a term of 5 years and Rs.1 lakh fine. Opposite party stated that he is not in good terms with the judge and that he will appear only after the transfer of the said judge. According to the complainant the act of the opposite party amounts to deficiency of service on their part. Hence the complaint. Complainant claims an amount of Rs.5 lakhs as compensation. 2. Opposite party filed version with the following contentions. Opposite party admits the entrustment of the case by the complainant and that the order in the said complaint was pronounced on 22/02/2005. According to the opposite party he only received Rs.1,500/- as advance fee from the complainant. The entire case was actually conducted by the opposite party directly and it is false to state that the opposite party did not appear for the complainant in the said case including the date on which order was pronounced. It is incorrect to state that the opposite party told the complainant that he is not in good terms with the judge and that he will appear only after the transfer of the judge. Opposite party has replied to the notice issued by the complainant on 4/8/2005 by stating true facts. According to opposite party complaint is filed after two years and therefore is barred by limitation. Regarding the conduct of the case, opposite party states that complainant was convicted u/s 55(a) of Abkari Act and sentenced. Since the sentence was for a period of 5 years, law does not provide for suspension of the sentence by trial court and hence arrangements were made by opposite party to file appeal before Hon'ble High Court of Kerala and obtain order of suspension of sentence and bail. All such arrangements were made by sending a lawyer from opposite party's office to Ernakulam on the same day itself. According to the opposite party, complaint is liable to be dismissed. 3. Evidence adduced consists of Ext.A1 series and proof affidavit. Ext.B1 to B5 series were marked on the side of opposite party. Complainant was cross examined as PW1. 4. The issues that arises for consideration are; 1. Whether the complaint is barred by limitation? 2. Whether there is deficiency of service on the part of the opposite party? and 3. If so, what is the relief and cost? 5. Issue No.1: Opposite party raised a contention that the complaint is barred by limitation. Order in the Session cases is pronounced on 22/02/2005 and complaint is filed only on 5/7/2007. But it can be seen that complainant has caused a notice on 4/8/2005 for which reply was received on 22/8/2005. On receipt of notice within the period of limitation itself complaint has been filed. Hence we answer the point in favour of complainant. 6. Issues No.2 and 3: The definite case of the complainant is that he has entrusted his case to the opposite party on payment of Rs.3,000/- towards advance fee. The grievance of the complainant is that even after receipt of the fees, opposite party has not conducted the case. Opposite party has not appeared before the court even on the date on which the order was pronounced. Opposite party admits the entrustment of the case of the complainant. 7. But denies the fact that he has not appeared during the proceedings of the case and has not conducted the case properly. 8. We have carefully gone through all relevant documents on record and hear the complainant and opposite party. Opposite party heavily relies on Ext.B1, judgement pronounced by Hon'ble Session Court wherein it can be seen that all the witnesses were properly cross examined by the opposite party counsel and case is conducted by the opposite party himself. This contention is of no substance for the reasons that judgement will carry the name of the counsel holding vakalath inspite of the fact whether it is being conducted by the opposite party or his junior counsel. 9. Perusing the testimony of the complainant while he was cross examined, complainant states that “tIkn ^mÌv {Sm¡v \¼À 1 tImSXnbn F{X Znhkw hnNmcW \S¶p F¶v IrXyambn HmÀ½bnÃ. Hcp 3 Znhkw \S¶p F¶mWv HmÀ½. tIknsâ hmZ kab¯v Rm³ tImSXnbneptWvSm F¶v Rm³ HmÀ¡p¶nÃ. tIkn km£nIsf hnkvXcn¨Xpw hmZw \S¯nbXpw FXrI£n t\cn«mWv F¶v ]dbp¶Xv icnbmtWm? No answer”. Complainant doesn't remember how many days the examination was conducted and whether all the days he was present or not. Again a specific question was put to the complainant for which he doesn't answer. 10. Complainant has not taken any steps to examine either the prosecution witness of the said case or the counsel who according to the complainant has actually conducted the case, if it is not conducted by the opposite party, in order to ascertain true facts. In the absence of any cogent and convincing evidence, we cannot attribute deficiency of service on the part of opposite party. Complainant claimed lakhs of rupees as compensation. As we have found there is no deficiency of service further aspect of compensation need not be examined 11. In view of the above circumstances, we are of the view that the complainant has miserably failed to prove a case in his favour. In the result complaint dismissed. No order as to cost. 12. Pronounced in the open court on this the 27th day of January, 2009 Sd/- Smt.Seena.H, President Sd/- Smt.Preetha.G.Nair, Member Sd/- Smt.Bhanumathi.A.K, Member
Appendix Exhibits marked on the side of complainant Ext.A1 (Series) – Reply sent by opposite party to complainant dt.22/8/2005 & acknowledgement Exhibits marked on the side of opposite party Ext.B1 – Copy of judgement of Hon’ble Additional Sessions Judge dt.22/2/2005 Ext.B2 – Copy of order dt.25/2/2005 of Hon’ble High Court of Kerala Ext.B3 – Copy of appeal filed before the Hon’ble High Court of Kerala Ext.B4 – Copy of Letter dt.4/8/2005 sent by complainant to opposite party Ext.B5 – Copy of reply letter dt.22/8/2005 sent by opposite party to complainant
......................Smt.Bhanumathi.A.K
......................Smt.Preetha.G.Nair
......................Smt.Seena.H | | 
