COMPLAINT FILED ON: 31.03.2009

DISPOSED ON: 18.01.2011

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

DATED THIS THE 18^TH JANUARY – 2011

       PRESENT:- SRI. B.S.REDDY                 PRESIDENT                        

                         SMT. M. YASHODHAMMA    MEMBER    

                         SRI.A.MUNIYAPPA               MEMBER              

O R D E R

SRI. B.S.REDDY, PRESIDENT

The complainant filed this complaint U/s. 12 of the Consumer Protection Act of 1986, seeking direction against the Opposite Party (herein after called as O.P.) to refund the fee amount of Rs.5,000/- and to pay compensation of Rs.10,00,000/- and interest at 18% p.a. along with litigations expenses on the allegations of deficiency in service on the part of the OP.

2.      The case of the complainant to be stated in brief is that:

The complainant was accused in criminal case C.C. No.6617/-2000, the OP was appearing on behalf of accused No.2 to 8 in the said case. The complainant was accused No.1 and he was represented by his Advocate R.Shailesh Kumar OP was appearing on behalf of Sri. J.P. Associates. The case ended in acquitted on 29.04.2005. While prosecuting the said case the relationship between the complainant and OP became close. On that basis the complainant engaged OP to defend in criminal miscellaneous 8/2000. The said case was filed by the wife of the complainant against him seeking maintenance of Rs.500/- to each of his wife and daughter. The Vakalath given by the complainant has not been filed by the OP in the said case and no representation has been made by OP in that case.

During the year 2005-06 OP started his own office and contacted the complainant and told him to contact for prosecution of any cases in future. On 20.11.2006 the complainant approached OP to file a divorce petition against his wife in Family Court and handed over the relevant documents, papers and paid an amount of Rs.2,000/- as professional fees to the OP. During the month of December – 2006 the complainant had given photographs taken at the time of marriage and also paid Rs.3,000/- as professional fees to the OP. Thus total Rs.5,000/- has been paid to the OP for filing and prosecution of the said case. After giving all papers for filing of divorce petition and at the time of visiting office of OP, after two months, the complainant enquired about the status of the divorce petition, he was told by OP that “as now you need not come to the court, if necessity arises I will only call you, your case has been already filed in the Family Court. After the service of the notice to the respondent you might attend the court”. During the year – 2007 complainant approached OP several times and enquired about the status of the divorce petition. OP was giving several dates stating that the said divorce petition has been adjourned from time to time. During the month of June – 2008 OP had given hearing date as 10.07.2008. The complainant visited the office of OP in the month of October – 2008 and enquired about his case and sought for the number of the said case, OP had given the said case number as M.C. No.1732/2007. The said case number was given on 13.10.2008. On 14.10.2008 complainant enquired in Family Court with regard to that case and found that case number belonged to one Smt. Swapna and Sri Subbaiah not belonged to him. The complainant approached OP and OP informed that his case has been filed in the Family Court. When the complainant sought for copy of the case which has been filed, OP had given papers comprising of four sheets. When the complainant saw that four sheets, he came to know that the first and last sheets belong to his case and second and third sheets related to some other case. Besides that in the said case papers there was no case number entered. Again on 14.10.2008, when the complainant approached OP, OP once again took the signature of the complaint on Vakalath. On 17.10.2008 when the complainant along with his brother Sri. B. Prakash visited the office of OP; OP once again assured that on the very next day the case of the complainant will be filed. Fed up with this kind of callous and negligent act of OP, the complainant sought for return of all his case papers and OP returned the case papers to the complainant. The attitude of OP not filing the case in Family Court shows that he has acted negligently and also has shown professional misconduct and gives suspicion that the OP might have been joined hands with the other party. The complainant engaged service of other Advocate Sri. Siddesh Ummatturu and filed divorce petition through him in M.C. No.3020/2008. The complainant suffered lot of mental, physical and financial losses due to the callous, negligent, unwarranted act of OP, which amounts to deficiency of service. Legal notice was issued claiming compensation of Rs.10,00,000/-, OP replied for the same denying all the facts stated in the notice and receipt of fee of Rs.5,000/-. Hence the complaint.    

3.      On appearance, OP filed version contending that the complaint is barred by limitation; the same is liable to be dismissed. It is admitted that OP was appearing on behalf of accused No.2 to 8 in criminal case No.6617/2000 and through no objection Vakalath filed on 03.01.2000, the Jaypee Associates had represented by its Senior Advocate Mr. N.Jaiprakash Rao had filed the Vakalath for accused No.2 to 8 on 03.01.2000, OP was Junior Advocate in the office of Jaypee Associates and he has filed the Vakalath on the instructions of Senior Mr. Jaiprakash Rao. The said case was also conducted by other Counsels of the Jaypee Associates. OP had left the service of Jaypee Associates in the year 2004-05 itself and started independent office, the question of opening the office in the year 2005-06 does not arise. The allegations that while prosecuting the said criminal case the relationship between the complainant and OP became close is false and baseless, since OP on the instructions of Senior was attending for accused No.2 to 8 and the question of coming close to the complainant does not arise at all. It is denied that the complainant engaged to defend him Criminal Miscellaneous No.8/2000. OP never intimated the complainant to get any cases, since OP had left the job Jaypee Associates and had never met the complainant after quitting the office and question of meeting the complainant does not arise. It is denied that on 20.11.2006 the complainant had approached the OP requested to file a divorce petition against his wife in Family Court and the relevant documents, papers and paid professional fee of Rs.2,000/-. Further it is denied that in the month of December – 2006, the complainant had given the photograph taken at the time of marriage and also paid Rs.3,000/- as professional fees to OP and totally Rs.5,000/- as alleged. It is denied that OP informed the complainant not to come to the court, till the respondent appears in the case. Further the allegation that the complainant met OP several times and enquired about status of divorce petition are denied as false and it is assured that OP had given date of hearing of divorce petition as 10.07.2008 that he has furnished the case number as M.C. No.1732/2007 and that he has handed over copy of divorce petition. The complaint is frivolous; the same is filed at the instance of enemies who are opposed to the OP. It is denied that the complainant along with his brother visited office on 17.10.2008 and OP assured that he will file divorce petition and at that time; the complainant and his brother have demanded for return of the papers and accordingly he had returned the papers. The complainant never visited the OP office to file any petition nor handed over the documents and therefore the question of callous, negligent and unwarranted act of suffering of mental, physical and financial losses does not arise at all. The question of professional negligence and deficiency of service does not arise at all. The complainant is not entitled for any of the reliefs. Hence it is prayed to dismiss the complaint with exemplary costs.       

4.      In order to substantiate the complaint averments, the complainant filed affidavit evidence and produced documents. OP filed affidavit evidence in support of defence version and produced documents.

5.      Both the parties filed written arguments, arguments on both sides heard. Points for consideration are:

Point No.1:- Whether the complainant proved the

                                      deficiency in service on the part of the

                                      OP?

Point No.2:- Whether the complainant is entitled for

                   the relief’s now claimed?

Point No.3:- To what Order?

7.      We have gone through the pleadings, affidavit evidence, written arguments filed on both sides and the documents produced. We record our finding on the above points:

Point No.1:- Negative.

Point No.2:- Negative.

Point No.3:- As per final Order.

R E A S O N S

8.      The case of the complainant is that in a criminal case C.C.No.6617/2000 this OP was appearing for accused No.2 to 8, the complainant was accused No.1 one R. Shailesh Kumar, Advocate was appearing for him. That case ended in acquittal on 29.04.2005 on the file of IIIrd A.C.M.M., Bangalore. The complainant became closely acquainted with OP during the pendancy of that criminal case. It may be noted that OP being an advocate has totally denied the fact of complainant having become close to him during the pendancy of the said criminal case. When this OP was not at all appearing for complainant in the said criminal case, the question of complainant becoming close to the OP does not arise. Further as per the written arguments of OP this complainant who was accused No.1 C.C.No.6617/2000, was arrested on 13.09.2001 and produced before the IIIrd A.C.M.M. and he was handed to Judicial Custody. The complainant engaged other Advocate by name V. Jagadish Gowda and obtained bail in that case. If at all this OP was close to the complainant, he could have engaged the services of OP for obtaining the bail. OP has produced the certified copy of the Vakalath filed for accused 2 to 8 in that case on 03.01.2000; Jaypee Associates Advocates appeared for 2 to 8 on 03.01.2000. This OP being one of the juniors in the said Associates has also put his signature for the Vakalath. The other advocates of that Associates have also put their signature for the Vakalath. On one or two accessions OP might have represented accused 2 to 8 in that criminal case. Only on that basis we are unable to accept that the complainant accused No.1 in that case became close with OP. Under these circumstances we are unable to accept the case of the complainant that he became close with OP when that criminal case proceeding was conducted in the IIIrd A.C.M.M. Court. Further the case of the complainant is his wife and daughter filed criminal miscellaneous No.8/2000 against him claiming maintenance and the complainant engaged the services of this OP to defend him and Vakalath was given by him, but OP failed to appear in that case; as a result that case ended in allowing the petition ex-parte directing this complainant to pay monthly maintenance of Rs.500/-. There is no material to prove the fact that the complainant has engaged the services of this OP to defend him in that proceedings. If at all OP was engaged in that case by this complainant, there was no reason for the OP in not filing the Vakalath and defend the complainant in that proceedings. Therefore we are unable to accept that the complainant has engaged the services of OP in that criminal miscellaneous petition and OP failed to defend him as a result the petition was allowed ex-parte.

9.      The main case of the complainant is on 20.11.2006 he approached this OP to file a divorce petition against his wife in Family Court and handed over the relevant documents and papers and paid on amount of Rs.2,000/- as professional fee to the OP. Further in the month of December – 2006 he had given the photographs taken at the time of marriage and also paid sum of rs.3,000/- as professional fee to the OP. Thus a total sum of Rs.5,000/- has been paid to the OP for filing and prosecuting the divorce petition, but OP failed to file the divorce petition and he has returned all the papers to the complainant on 17.10.2008. Thus about 2 years OP made the complainant to visit his office without filing any divorce petition inspite of receipt of all the papers and fee of Rs.5,000/- and the same amounts to deficiency in service on the part of the OP. Legal notice issued by the complainant was replied by the OP denying all the allegations made.                              

10.    OP totally denies the fact of complainant having engaged his services to file divorce petition and handing over all the papers necessary for filing the petition. There is no material to prove the fact that the complainant has paid totally Rs.5,000/- professional fees to the OP. It is true that Advocate may not issue any receipt acknowledging the receipt of professional fee, but there must be circumstances sufficient to hold that OP must have received the professional fee. As per the case of the complainant himself; in the criminal petition No.8/2000 OP failed to file Vakalath and defend him as a result that petition was allowed ex-parte on 25.09.2000. When that was so it is difficult to believe the case of the complainant that still he engaged the services of this OP to file the divorce petition in the year 2006. When an advocate failed to appear for the party in the earlier proceedings, the party may not choose to engage the services of same advocate for another proceedings. The brother of the complainant, who is said to have accompanied the complainant on 17.10.2008 to the office of OP, when OP returned all the case papers, has not filed affidavit evidence in support of the complainant’s case. The complainant has not produced all those documents to prove the fact that OP has returned those documents and photos. If at all those papers and documents were given to the OP for filing divorce petition and OP has returned those documents, nothing prevented the complainant from producing those documents and photos before this Forum including Vakalath on which he has signed with date so as to support his affidavit evidence.

11.    Further the case of the complainant is that he used to visit the office of the OP and enquire about the progress of the divorce petition and the case number given in the month of October – 2008, the OP has furnished the case number as M.C. No.1732/2007. When he went to the office of the Family Court and enquired about that case, the said case belonged to some other party. In our view there was no reason for OP furnish case number, as he has not at all taken the papers from the complainant for filing the divorce petition. Further the case of the complainant is when he sought for the copy of the divorce petition stated to have been filed, OP furnished copy comprising of four sheets marked as Annexure-B, the first and last sheets belongs to complainant’s case and second and third sheets related to some other case. After perusing Annexure-B it becomes clear that the papers does not bear the seal, signature or initial of the OP to prove that this papers were furnished by OP to the complainant. When the two sheets belongs to some other case, there was no reason for OP to furnish said papers without there being any case number. Therefore we are unable to accept that Annexure-B case papers were furnished to the complainant by OP.

12.    The learned counsel for the complainant contended that there is no reason for filing false complaint against OP; if at all the services of OP were not engaged by the complainant. In our view without there being any satisfactory material, we are unable to accept that the complainant engaged the services of OP for filing the divorce petition. The reason for filing a complaint is within the knowledge of the complainant, merely because OP has an advocate engaged by some of the accused in the criminal case where in this complainant was also accused No.1 in C.C.No.6617/2000, it cannot be presumed that the complainant became close to the OP and engaged his services for filing divorce petition. Taking into consideration of all the facts and circumstances we are of the considered view that the complainant failed to prove deficiency in service on the part of the OP. The complaint is devoid of merits and the same is liable to be dismissed. Accordingly we proceed to pass the following:    

O R D E R

The complaint filed by the complainant is dismissed. Considering the nature of dispute no order as to costs.

Send the copy of this order to both the parties free of cost.

(Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 18^th day of January - 2011.)

PRESIDENT

MEMBER                                                      MEMBER 

 Snm: