BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

C.C. No. 174/2008 Filed on 04.08.2008

Dated : 30.06.2010

Complainant:

N. Manoharan, Tholikkottukonathu Veedu, Alachakkonam, Vazhichal P.O, Ottasekharamangalam.

Opposite party:

Adv. T.P Rajasekharan Nair (High Court of Ernakulam), Anayara, Pettah, Thiruvananthapuram.

(By adv. Kamaleswaram S. Manikantan Nair)

This O.P having been heard on 09.04.2010, the Forum on 30.06.2010 delivered the following :

ORDER

SMT. S.K. SREELA, MEMBER

The grievance of the complainant is as follows: Complainant was a casual servant in KSHPDC from 1992 to 1996. As per office order No. A6 96 HPDC, 09.08.1996, the complainant was transferred from the vegetables and fruits store at Statue, which was directly run by the Government, to the Mudavanmugal bunk which was in a dilapidated condition, whereby a non-working condition was created and the complainant was dismissed from the job. Hence the complainant submitted several requests before the authorities concerned to retrieve his job which was a vain attempt and therefore preferred a complaint before the Hon'ble Lok Ayuktha from where a favourable order was obtained. As the said order was not executed, the complainant entrusted the said order for execution to the opposite party who is his native, who had studied with the complainant in primary classes and the opposite party assured to get an execution order. The opposite party collected Rs. 5,000/- towards High Court expenses and though assured to obtain an order within a period of 3 months, the same was simply dragged and delayed but a favourable order was obtained at last. As the said order was also not complied with, the opposite party again collected Rs. 5,000/- for filing a case under contempt of court procedure and collected signatures of the complainant in records. The opposite party never allowed the complainant to appear before the court in person and simply dragged the matter. Later on the opposite party called the complainant to his house and made him sign in a white paper. Without the consent of the complainant, in the said document, the opposite party made an application making it into a writ petition and instead of producing the records the complainant before the court, the same was given to the other side and conducted case for HPDC and obtained an order favouring HPDC, but informed otherwise to the complainant. Again as demanded by the opposite party, the complainant went to the house of the opposite party with Rs. 5,000/- as fees and collected the order. The opposite party told the complainant to meet the M.D and accordingly when the complainant met the M.D, he denied the job and the complainant was asked to go out of that place. Hence this complaint for refund of court expenses and compensation for mental agony and sufferings.

The opposite party has filed his version contending as follows: The complaint is not maintainable. The opposite party has been practicing as a lawyer before the Kerala High Court for the past 14 years. Till date there has been no complaints against him for professional misconduct. The complainant was a casual employee of Kerala State Horticulture Products Development Corporation and the complainant approached the opposite party stating that when he was transferred, the complainant could not join the said job whereby he was denied the job and the complainant wanted the opposite party to pursue the order obtained from the Lok Ayuktha which according to the complainant was favourable to him. It is true that the complainant and opposite party belong to a same place and known to each other from childhood. And for the said sole reason the opposite party never collected any amount as fees from the complainant and filed the first complaint before the High Court. As the said order was not complied, as per the request of the complainant, a contempt of procedure case was filed for which also no amount was collected as fees. Whileso, the corporation passed an order stating that the complainant could not be taken back and the Hon'ble High Court accepted the same and closed the contempt procedure. The complainant again approached the opposite party to challenge the order of the Corporation and on the basis of the same a 3^rd writ petition was filed. The Hon'ble High Court dismissed the same and directed the Corporation to take a lenient view. The opposite party has never colluded with the Corporation as alleged in the complaint. The case of the complainant in Lok Ayuktha was conducted by some other lawyer. The allegations levelled against the opposite party in the complaint is baseless and hence prays for dismissal of the complaint.

Complainant has been examined as PW1 and marked Exts. P1 to P12 and PW2 and PW3 witnesses were also examined. Opposite party has been examined as DW1 and marked Exts. D1 to D6.

From the contentions raised, following issues arise for consideration.

1. Whether there has been any deficiency in service on the part of the opposite party?

2. Whether the complainant is entitled for any of the reliefs claimed in the complaint?

Points (i) & (ii):- Admittedly, the cases of the complainant have been conducted by the opposite party. The opposite party submits that, since he knows the complainant from his childhood, he has not collected any amount towards fees for conducting the case. It is a common practice that no lawyer will conduct case free of charge. The complainant alleges that he had paid Rs. 5,000/- each 3 times as fees to the opposite party, though the same is not supported by any evidence. But when a consumer dispute like this complaint arises, we cannot conclude it on the basis of presumptions or assumptions. The payment of fees has to be supported with sufficient proof, which is unfortunately absent in this case except to the testimony of interested witnesses.

At this juncture, the aspect to be looked into is whether the opposite party has conducted the cases entrusted to him properly and diligently.

Ext. P10 is the order of Hon'ble Lok Ayuktha wherein the complainant is the complainant in this case and the opposite parties are Government of Kerala and KSHPDC. The counsel for the complainant in the above referred case is one Adv. R.K. Soman. As per Ext. P10 dated 22.11.2001 it has been ordered that “ ….....it is only just and proper that the Managing Director is directed to consider leniently the claim of the complainant and to pass appropriate orders within a maximum period of 3 months from today. If the complainant wants to make any more submission and representation, that can also be presented to the Managing Director either in person or otherwise within a period of 3 weeks from today. With the above direction the complaint is disposed of”. As per Ext. P11 dated 23.06.2004 which has been filed by the complainant and conducted by the opposite party, the Hon'ble High Court has directed KSHPDC to take appropriate action thereon on merits without discriminating the petitioner. Ext. D1 dated 27.06.2005 is the order of Hon'ble High Court against the Ext. P11 order wherein the Hon'ble High Court has held that “Petitioner complains of violation of Annexure A1 judgement. It is seen that the respondent has passed Annexure A3 order. Having heard the learned counsel appearing for the respondent, I do not find any contumacious conduct on the part of the respondents. True, the petitioner is aggrieved. He has to pursue his grievances in appropriate proceedings challenging Annexure A3 order and the Government letter referred to in Annexure A3. Without prejudice to such liberty this C.C.C is closed”.

On going through all the records produced by the complainant and the opposite parties it could be found that, even if any loss has been caused to the complainant, it has not been caused due to any negligence on the part of the opposite party. Negligence is absence of reasonable or prudent care which a reasonable person is expected to observe in a given set of circumstances. The documents prove that the opposite party has not been negligent in discharge of his duties. Thus the provisions of Sec. 14(1)(d) are attracted only if the person from whom damages are claimed is found to have acted negligently and such negligence must result in some loss to the complainant who is claiming damages. Mere loss or injury without negligence is not contemplated by this section.

From the foregoing discussions, we are of the view that there is no negligence or deficiency in service on the part of the opposite party. Hence we hereby dismiss the complaint.

In the result, complaint is dismissed.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 30^th day of June 2010.

S.K. SREELA : MEMBER

G. SIVAPRASAD : PRESIDENT

BEENAKUMARI. A : MEMBER

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C.C. No. 174/2008

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - Manoharan. N

PW2 - P.K. Sasi

PW3 - Nagamani

II COMPLAINANT'S DOCUMENTS :

P1 - Photocopy of the order of the High Court of Kerala.

P2 - Copy of letter dated 01.07.2007 from the complainant.

P3 - Copy of letter dated 16.10.2007 addressed to the complainant.

P4 - Copy of receipts.

P5 - Copy of receipts

P6 - Copy of savings bank pass book.

P7 - Copy of letter from advocate clerk.

P8 - Copy of receipt from Kattakkada police station.

P9 - Copy of ration card.

P10 - Copy of the order Hon'ble Lok Ayuktha.

P11 - Copy of judgement of Ho'ble High Court of Kerala.

P12 - Copy of letter dated 16.12.2007.

III OPPOSITE PARTY'S WITNESS :

DW1 - T. Rajasekharan Nair

IV OPPOSITE PARTY'S DOCUMENTS :

D1 - Copy of the order of Hon'ble High Court of Kerala dated 27.06.2005

D2 - Copy of the order of Hon'ble High Court of Kerala dated 12.11.2007.

D3 - Copy of letter dated 11.02.2002

D4 - Copy of letter dated 17.04.2002.

D5 - Copy of letter dated 06.05.2002 addressed to the complainant.

D6 - Copy of registered letter dated 29.10.2004.

PRESIDENT