DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANSA. Complaint No.140/10.09.2008 Decided on : 27.05.2009 Sh.Jagdev Singh S/o Sh.Baldev Singh, resident of Village Ralkli, Post Office Datewas, Tehsil Budhlada, District Mansa. ..... Complainant. VERSUS 1.Sh.Anil Kumar @ Titu S/o Sh.Bishamber Dass, Anaj Mandi, Shop No.111, Budhlada, District Mansa. 2.Sh.Akshay Anand, Advocate, Chamber No.190, New Delhi Courts, Patiala House, New Delhi.110 001 3.Sh.Abhijeet Prasar Medh, Advocate, 070, Lower Chambers, Supreme Court of India, Delhi. ..... Opposite Parties . Complaint under Section 12 of the Consumer Protection Act, 1986. ..... Present: Sh.N.K. Sharma, Advocate counsel for the complainant. Sh.B.N.Goel, Advocate counsel for Opposite Party No.1 Opposite Party No.2 & 3 exparte. Quorum: Sh.P.S. Dhanoa, President. Sh.Sarat Chander, Member. Smt.Neena Rani Gupta, Member. ORDER:- Sh.P.S.Dhanoa, President: This complaint has been filed, by Sh.Jagdev Singh son of Sh.Baldev Singh, a resident of Village Ralli, District Mansa, against the opposite parties, under Section 12 of the Consumer Protection Act, 1986 (hereinafter called the 'Act'), for return of his brief and refund of amount of Rs.20,000/- paid as fee and payment of compensation in the sum of Contd........2 : 2 : Rs.1 lac., for mental and physical harassment. As per allegations made in the complaint, the case of the complainant may briefly be described as under: 2. That he was called to appear in the interview for the post of Patwari on 9.9.1998, although he had applied for the post of Clerk in response to the advertisement published by Subordinate Service Selection Board of State of Punjab. The complainant was declared successful by the said board after he passed test, appeared for interview and his name was cleared for screening of the candidates. Thereafter at the asking of the board, he filed application for the post of Clerk, but appointment letter was not issued on the ground that he applied for the post of Patwari. Aggrieved by the same, he decided to file Writ Petition in the Hon'ble Apex Court. The complainant used to organize community kitchen at Shri Amarnath Shrine to feed the pilgrims visiting there. The OP No.1 also used to organize community kitchen at the above said Shrine. As such, he developed intimacy with the complainant. He told the complainant that OP No.2, who is an Advocate by profession, visits his shop at Budhlada from Delhi frequently and is a senior Advocate practicing in the Hon'ble Apex Court, as such, he can consult him for filing of Special Leave petition. In the year 2004, OP No.2 visited the shop of OP No.1 and arranged his meeting with OP No.2 . At the asking of OP No.1, the complainant reached his shop situated at Budhlada and discussed his case with OP No.2 and engaged him as his counsel to represent him in the Special Leave Petition in the Hon'ble Apex Court reposing confidence in him and OP No.1. He paid a sum of Rs.20,000/- to OP No.2, as his fee for pursuing his case in the Hon'ble Apex Court in the presence of OP No.1 in his shop. He also paid him requisite amount needed for meeting the expenses of filing of the Special Leave Petition and also delivered him necessary documents. 3. After sometime, he approached OP No.2 and enquired about the fate of his Special Leave Petition, but he informed him that he had Contd.......3 : 3 : further engaged OP No.3 as his counsel to pursue his case without seeking his consent. As the complainant approached OP No.3 to know the fate of his Petition, he demanded a sum of Rs.2 lacs and gave him assurance for acceptance thereof by the Hon'ble Apex Court. As the complainant told OP No.3 that he has already made the payment to OP No.2, he in turn informed that his Special Leave Petition has been dismissed by the Hon'ble Apex Court. On being called upon for return of brief including matriculation certificate, receipts, copy of impugned order passed by the Hon'ble High Court, identity card, ration card and copy of Writ Petition, he refused to return them. As such, there is deficiency in service on the part of the Opposite Parties, because of which complainant, has been subjected, to mental and physical harassment because OP No.2 did not file Special Leave Petition in the Hon'ble Apex Court despite having paid the requisite fee to him. The complainant could not perform any work due to mental tension and suffered a loss of Rs.50,000/- on account of loss of income. He is also entitled to recover damages in the sum of Rs.30,000/-, Rs.20,000/- on account of fees paid by him. Hence this complaint. 4. On being put to notice, Opposite Party No.1 filed written version, resisting the complaint, by taking preliminary objections;that the that the complaint is bad for mis-joinder of the answering opposite parties to the complaint because he has neither agreed nor provided any service to the complainant; that the complainant, is not the 'consumer' within the purview of its definition given in the Act, as such, complaint, is not maintainable; that the complaint is barred by limitation; that complaint is vague because no date and month of any year has been disclosed when the complainant came into contact with the answering opposite party and he arranged his meeting with OP No.2; that the complainant had filed an application before the Senior Superintendent of the Police, Mansa where he has not disclosed the facts mentioned in the complaint and his application was consigned by the said officer after holding enquiry in Contd........4 : 4 : which it turned out that answering opposite party had no role to play in the dealing of OP No.2 with the complainant. On merits, the factum of filing of application by the complainant for the post of Clerk and his selection as Patwari instead of Clerk by the Subordinate Service Selection Board and dismissal of his petition by the Hon'ble High Court is denied for want of knowledge. It is specifically denied that answering opposite party ever organized community kitchen and visited Shri Amarnath Shrine. It is also denied that in the year 2004, OP No.2 visited the shop of the answering opposite party or that he arranged the meeting with him. He has also denied that complainant engaged OP No.2 as his counsel or that he paid him any amount on account of fee in his presence. It is contended that answering opposite party has no intimacy with the remaining opposite parties and have not demanded any amount from the complainant in his presence. He has denied that any negotiation took place between the complainant and OP No.2 with the intervention of the answering opposite party or that complainant has suffered any mental or physical harassment or tension or loss due to deficiency in service on the part of the answering opposite party. Rest of the averments, made in the complaint, have been denied, and a prayer has been made, for dismissal of the same, with costs. 5. The Opposite Parties No.2 and 3 were proceeded against exparte vide order dated 1.12.2008 and 30.1.2009, respectively. 6. On being called upon by this Forum, to do so, the counsel for the complainant tendered his affidavit and copies of documents Ext.C-1 to C-16 before closing his evidence. On the other hand, learned counsel for the opposite parties did not produce any evidence because his evidence was closed by vide order dated 24.9.2008. 7. We have heard the learned counsel for the parties and gone through the oral and documentary evidence, adduced on record, by the complainant, carefully, with the kind assistance of the counsel for the complainant and OP No.1. Contd.......5 : 5 : 8. At the out set, learned counsel for the complainant Sh.N.K.Sharma, Advocate has submitted that engagement of OP No.2 as his counsel by the complainant to pursue his Special Leave petition in the Apex Court without his consent and non return of his brief amounts to deficiency in service and professional misconduct on their part because of which the complainant has been subjected to mental and physical harassment and suffered huge financial loss on account of loss of income, as such, he is entitled to seek compensation, costs and direction for return of brief and refund of his fee. In support of his contention the learned counsel has relied upon 2003(I) CPC 551 Punjab Tourism Development Corporation versus Kali Ram Garg, Advocate, wherein it has been held by the Hon'ble Punjab State Commission that once relationship of counsel and client is proved,then it is not necessary to prove payment of fee by the client to the counsel and where service of an advocate has been hired for consideration, the hirer is a consumer under the Act. Learned counsel further relied upon 1999(I) CPC 119 Riaz Ahmad Sharifkhan versus Shri Babu Mustafa Khan, Advocate, wherein it was held by the Hon'ble Maharashtra State Commission that once an advocate is engaged by a client having paid fees in full or in part, then he is duty bound to safeguard the interest of his client properly and must maximise the benefit and minimise the loss to his client. It is further held that Advocate must intimate the result of the case, whether won or lost, in time to the client so that he can pursue further remedy and the plea of the opposite party there was only 50 percent chances in winning the case in the Hon'ble Supreme Court was not accepted on the ground that compensation cannot be determined only on a new guess work and complainant was held to be entitled to payment of Rs.50,000/-. Learned counsel has further relied upon 2000(III) CCC (Supreme Court) 695 R.D.Saxena versus Balram Prasad Sharma, wherein it has been held by the Hon'ble Apex Court that Advocate does not have lien on litigation papers entrusted to him by his client Contd.......6 : 6 : against his fees, as such, refusal to return the file to the client, on demand amounts to professional misconduct in the ambit of Section 35 of the Advocates Act, 1961, although he can resort to legal remedy for unpaid remuneration. Learned counsel has further relied upon 2008(I) (NC) CPC 353 Mrs.Shakuntla versus Mr.R.K.Saini, Advocate, wherein it has been held by the Hon'ble National Commission that a well reasoned order of the District Forum directing the opposite party to return the documents alongwith payment of compensation to the complainant, was wrongly modified by the State Commission, by set asiding the same, as such, order of the District Forum was ordered to be restored by the Hon'ble National Commission in revision petition. Learned counsel has lastly relied upon 1979 Supreme Court AIR 281 V.C. Rangadurai versus D.Gopalan & Ors, wherein it has been held by the Hon'ble Apex Court that it is not in accordance with the profession etiquette for an advocate to handover his brief to another to take his place at a hearing and conduct the case, as if the latter had himself been briefed, unless the client consents to this course being taken. 9. On the other hand, Learned counsel for the Opposite Party No.1 Sh.B.N.Goel, Advocate has submitted that there is no relationship of consumer and service provider and his client and the complainant, as such, complaint against him is not maintainable in the Consumer Fora , as he does not fall in the purview of the definition of a consumer. Learned counsel has drawn our attention to various documents placed on the file showing that the application filed by the complainant has been dismissed by the Senior Superintendent of Police for the role played by OP NO.1. Learned counsel argued that complainant has not adduced any corroborating evidence to establish that he developed intimacy with OP No.1 in the manner projected by him in the complaint and that with his intervention he engaged OP No.2 as his counsel in connivance between the opposite parties in engagement of OP No.3 as his counsel to pursue his Contd.......7 : 7 : Special Leave Petition in the Apex Court instead of OP No.2. Learned counsel has urged that as the complainant has failed to prove any allegation against OP No.1, therefore, complaint against him, being false and frivolous, is liable to be dismissed with compensatory costs. 10. The complainant has produced on record, copy of order dated 20.1.2004 Ext.C-1, passed by the Hon'ble Punjab and Haryana High Court, Chandigarh dismissing the writ petition No.20690 of 2002 filed against the Subordinate Service Selection Board, Punjab. He has also tendered in evidence copy of case status Ext.C-14 showing that aggrieved by the order passed by the Hon'ble High Court, he preferred Special Leave Petition No.17128, which has been disposed of on 30.8.2004 by the Hon'ble Apex Court. The perusal of the said document reveals that complainant was represented by Mr.Abhijat P.Medh, Advocate i.e. OP No.3. He has also produced on record introduction card Ext.C-15, of Mr.Akshay Anand i.e. OP No.2 bearing his Chamber Number in Patiala House, New Delhi and residential address in Greater Kailash in the said city alongwith official, residential and mobile telephone numbers. The allegations made in the complaint have been reiterated by the complainant in his affidavit Ext.C-16 almost in verbatim on solemn affirmation. As such, it is established to the satisfaction of this Forum that he engaged the services of OP No.2 Mr.Akshay Anand, Advocate, but was represented in the Honble Apex Court in Special Leave Petition by Mr.Abhijat P.Medh, Advocate i.e. OP No.3. The evidence against OP No.2 and 3 brought on record by the complainant regarding non return of his brief containing his documents and extent of fees paid by him, has gone uncontroverted as OPs No. 2 and 3 have been proceeded against exparte. In the absence of any evidence to the contrary, we have no option but to hold that the complainant engaged services of OP No.2 with the intervention of OP No.1 to represent him in the Hon'ble Apex Court in Special Leave Petition referred above. In his duly sworn affidavit he has specifically alleged that he never gave consent Contd.......8 : 8 : to OP No.2 to engage the services of OP No.3, who on making demand by him, has refused to return his brief. However, it is not the case of the complainant that he has paid any amount on demand being raised by OP No.3 or for seeking his assistance to OP No.2 who recommended him because of his intimacy with him to avail services of OP No.3. The complainant has also produced on record copy of application Ext.C-9 filed by him to the Senior Superintendent of Police, Mansa dated 8.7.2008 alongwith postal receipt Ext.C-7 issued by the Post Office situated at Budhlada showing despatch of postal cover containing notice. He has also produced copy of statement of Sh.Anil Kumar @ Titu i.e. OP No.1 recorded in enquiry conducted by the police holding that he arranged the meeting between the complainant and OP No.2, with whom he had developed relationship because of organization of free kitchen for pilgrims going to pay obeisance at Shri Amarnath Shrine, but he has also stated that payment was directly made by the complainant to OP No.2 and he would abide by the decision given by this Forum where complainant has made the present complaint. The complainant has also produced on record a copy of enquiry report dated 9.11.2008 Ext.C-11 given by the Sh.Jagtar Singh, ASI, Police Station, Budhlada after holding enquiry as per direction given by Senior Superintendent of Police, Mansa. 11. The word 'consumer' has been defined in Section 2(1)(d)(ii) as a person who hires or avails of any service for consideration and Section 2(1)(o) provides that services rendered free of charges is not included in the word 'service' rendered to a consumer by a person. 12. The conjoint reading of the above said provisions contained in the Act, leads us to hold that OP No.1 is not service provider and service rendered by him and OP No.3 is without consideration. As such, the complaint in the Consumer Fora against Opposite Parties No.1& 3 is not maintainable, although the complainant is at liberty to take criminal action, if any, against them, if he so desires or advised. However, in view of the Contd.......9 : 9 : evidence led by the complainant, it stands established to our satisfaction that services of OP No.2 have been engaged by the complainant for pursuing his Special Leave Petition in the Hon'ble Apex Court after dismissal of the writ petition filed in the Hon'ble High Court. It is also established that the OP No.2 delivered the brief to OP NO.3 without the consent of the complainant. 13. In view of the facts borne on record, as substantiated by the light of the affidavit of the complainant and other evidence brought on record by him, we have no option but to accept his version that he has hired the services of OP No.2, to render him assistance for filing and pursuing his Special Leave Petition and a paid a sum of Rs.20,000/- for the said purpose. In our opinion, it was the liability of OP No.2, to convey the progress of his Special Leave petition in the Hon;'ble Apex Court to the complainant after acceptance of fee from him and to ensure to return the brief containing material documents mentioned in earlier part of the order. Therefore, we are of the considered opinion that OP No.2 cannot escape liability to refund the fee due to conduct of non-appearing personally on behalf of the complainant in the Hon'ble Apex Court and for nonreturn of his brief which appears to have been delivered by him to OP No.3, who, as held above, is not personally liable, not being privity of contract between the complainant and OP No.2. 14. In the light of our above discussion and being fortified by the ratio of judgments delivered in the above referred authorities relied upon by the learned counsel for the complainant, we are constrained to hold that instant complaint against OP No.1 and 3 is bound to fail but liable to succeed against OP No.2. 15. For the aforesaid reasons, we dismiss the complaint against Opposite Parties No.1 and 3 and accept the same against Opposite Party No.2, directing him to refund a sum of Rs.20,000/- to the complainant alongwith interest at the rate of 9 percent per annum from the date of filing Contd......10 : 10 : of the complaint i.e. 10.9.2008 till date of actual payment with further direction to pay Rs.1,000/- on account of costs of filing of the instant complaint. The OP No.2 is also directed to return the brief of the complainant containing the documents mentioned in the complaint. The compliance of this order be made within a period of two months from the date of receipt of the copy of the order. 16. The copies of this order be supplied to the parties free of costs, as permissible, under the rules. File be indexed and consigned to record. Pronounced: 27.05.2009 Neena Rani Gupta, Sarat Chander, P.S.Dhanoa, Member. Member. President.
