Date of filing: 26.10.2013
Date of disposal:16.07.2014
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ANANTAPUR.
PRESENT: - Sri S.Niranjan Babu, B.A., B.L., President (FAC)
Smt. M.Sreelatha, B.A.,B.L., Lady Member
Wednesday, the 16th day of July, 2014
C.C.No.58/2014
Between:
G.Venkateswarulu @ Venkatesh,
S/o G.Krishna Murthy,
D.No.13-15-315, Pipeline Road,
Hindupur,
Ananthapuramu District. … Complainant
Vs
B.S.Rami Reddy,
Advocate,
D.No.26-4-2878, RPGT Road,
Opp: Sreenivasa Theatre Lane,
Hindupur,
Ananthapuramu District. … Opposite party
This case coming on this day for final hearing before us in the presence of party in person and the Opposite Party call absent and set exparte and after perusing the material papers on record and after hearing the arguments of complainant side, the Forum delivered the following:
O R D E R
Smt. M.Sreelatha, Lady Member: - This complaint has been filed by the complainant under section 12 of the Consumer Protection Act, 1986 against the opposite party to pay a sum of Rs.60,000/- towards mental agony and damages and grant such other relief or reliefs.
2. The brief facts of the complaint are that:-This complaint is filed by the complainant stating that one M.Thimmaiah S/o Late Mallesappa of Mothukapalli Village of Hindupur Mandal has borrowed amounts from the complainant on 08.11.1998 & 02.02.2000 an amount of Rs.10,000/- and Rs.8,000/- respectively. When the said M.Thimmaiah did not pay the amount to the complainant he has hand over the above said two promissory notes to the opposite party to file suit for recovery of the amounts in the year 2001. The complainant also submitted that he paid an amount of Rs.4000/- towards court fee and advocate fee. The opposite party took the above said two promissory notes and the signatures of the complainant on blank papers and promised to file the same in to the court at an early date. The complainant stated that he was under the impression that the opposite party (advocate) had filed the suit and the process was going on. Whenever he went to the opposite party and asked the progress of the case the opposite party used to tell that the matter is coming up for trial and shortly the matter will be disposed off. The complainant also stated that due to financial problems he pressed the opposite party for the early disposal of the case. He also used to enquiry about the case the opposite party used to say something and postpone in the matter. When the complainant got suspicious over the opposite party he demanded to furnish complaint copy to know for how much amount he has paid filed the suit. The opposite party furnished the Xerox copies of pronote and complaint copy along with docket sheet with his own hand writing but failed to give suit number. The complainant also stated that he verified the court records he came to know that the opposite party (advocate) did not file the suit at all against the borrower i.e., M.Timmaiah and swallowed the amount, which the complainant has paid to the opposite party. The complainant also stated that when he came to know the said facts he asked the opposite party (advocate) to furnish the suit number and hearing date for which the opposite party failed to give suit number and admitted that the did not file the suit at all and assured that he would arrange to pay the amount either through the borrower or by the opposite party himself. Likewise also dragged the matter for another two years but he did not pay any amount. Then the complainant filed petition before Lok-Adalat in PLC No.17/2010 narrating the said facts the above said PLC was closed on 04.12.2010. When the opposite party failed to appear even after receipt of notices before the Lok-Adalat. Then the complainant constrain to file the present complaint as the attitude of the opposite party is amounts to deficiency in service. Hence he is entitled the amount of Rs.60,000/- towards deficiency in service and mental agony and also damages.
3. The opposite party called absent and set exparte.
4. Basing on the above pleadings the points that arise for consideration are:-
- Whether if there is any deficiency in service on the part of the opposite party?
ii) To what relief?
5. In order to prove the case of the complainant, the evidence on affidavit of the complainant has been filed and marked Exs.A1 to A4.
6. Heard complainant side.
7. POINT NO.1:- The complainant himself appeared to proceed his case and he submitted that he lent amounts to one M.Thimmaiah S/o Late Mallesappa on 08.11.1998 & 02.01.2000 for Rs.10,000/- and Rs.8000/- respectively. The complainant stated that when the above said M.Thimmaiah did not pay the amount the complainant approached the opposite party and handed over two pronotes to file the suit for recovery of the amount in the year 2001. The complainant also stated that he paid an amount of Rs.4,000/- towards court fee and advocate fee. The complainant also stated that by that time the opposite party obtained signatures in blank papers to draft the plaint. The complainant stated that whenever he asked about the suit number and date of hearing the opposite party use to postpone on some pretext or the other. When the complainant pressure the opposite party to give suit number the opposite party admitted that he has not file any suit against the borrower and the opposite part assured that he would arrange to pay the amount either through the borrower or the opposite party himself. The complainant also stated that when he pressured for suit number, the opposite party furnished Xerox copies of pronotes, plaint and docket sheet of his own hand writing. The complainant also stated that even after promising to pay the amount the opposite party failed to pay the amount he approached MLSC and filed PLC No.17/2010 against the opposite party narrating facts, the above said PLC was closed on 04.12.2010 when the opposite party failed to appear for settlement the attitude of the opposite party is amounts to deficiency in service and he also entitled the amounts under the head of mental agony.
8. When we go through the documents and pleadings Ex.A1 to A4 it clearly shows that the complainant lent an amounts in the year 1998 and 2000 to one M.Thimmaiah S/o Late Mallesappa. Ex.A1 draft plaint without signature of the plaintiff or advocate for the plaintiff. Ex.A3 is the docket sheet. Xerox copies of pronotes allegedly given by the opposite party marked as Ex.A2. The above three documents does not establishes the case of the complainant without proof of payment made to the opposite party. Only convincing document is Ex.A4 which is the certified copy of petition and docket order of PLC No.17/2010 contents of Ex.A4 i.e., petition in PLC No.17/2010 also runs on the same grounds of none filing of suit in to the court after receiving the brief. As per Ex.A4 the complainant mentioned in the PLC petition that he is illiterate and doing as worker in private school. In the above said petition the complainant also mentioned that he lent amounts to one M.Thimmaiah and he handed over two pronotes to the opposite party to file suit for recovery of the amount. It is also mentioned in the petition that the opposite party failed to file the suit and he used to harass mentally not furnishing the number and details of the case. The opposite party who was the respondent in the above PLC did not attend before Lok- Adalat and matter was closed with direction to approach proper Forum for his redressal. The complainant stated that not filing of case by the advocate after giving instructions and amount towards part fee amounts to deficiency in service as per section 2 (O) of Consumer Protection Act.
9. The complainant also submitted that when the authorities of MLSC closed the PLC he had no other go except to file the present complaint for deficiency in service and mental agony. Though the opposite party engaged an advocate on his behalf in the present case subsequently abstrained himself without filing any counter. The opposite party being an advocate and learned professional ought to have appear after receiving notices from MLSC and give his version as of his duty and keep himself clear and clean. When he engaged counsel before this Forum the opposite party is well aware the allegations leveled against him ought to have answered the allegations made against him. Because the allegations through blame on this professional ethics it is the opposite party also aware that the frivolous case or complaint may be dismissed with exemplary costs. But the opposite party had entered in to appearance through his counsels but remained exparte inspite of several opportunities given by this Forum. But there is no effort on the part of the opposite party alone established that the contents of complaint are genuine. The complainant is a poor person triving meager income and savings that is small amounts of pronotes under Ex.A2 it will be a great burden for his small living. The complainant has struggling from the date of giving brief to the opposite party to file civil suit in the year 2001 till date i.e., fast 13 years is the long period of sufferance the attitude of the opposite party he being a respectful and learned professional cannot be appreciated especially towards poor and needy this clear establishes nonappearance of the opposite party and failure in giving explanation/answer shows the conduct of the opposite party. There are no convincing reasons for nonappearance of opposite party (advocate) before MLSC and this Forum also. We are relying decision in 2009 I CPJ National Commission between Gurkirpal Versus Steevon Sony in the above case the Hon’ble National Forum held that the authority under the Consumer Protection Act award damages or compensation if deficiency in service was proved and complaint alleging deficiency in service on the part of advocate was maintainable. Hence we are of the opinion that the present case is maintainable against the opposite party. As the opposite party is an advocate the opposite party failed to perform his part of service he has not acted fairly the complainant there all amounts to deficiency in service and the complainant proved his case beyond reasonable doubt. We are also of the opinion that the long endeavor of the complaint is to be justified.
10. Hence this point is answered accordingly in favour of the complainant and against the opposite party and the complainant proved the present case comes under deficiency in service.
11. In the result, the compliant is allowed partly, the complainant is entitled an amount of Rs.20,000/- towards deficiency in service and an amount of Rs.10,000/- towards mental agony. The above said amount is payable within one month by the opposite party otherwise the complainant is entitled interest @ 9% P.A. from the date of filing of the complaint till the date of realization in the circumstances no costs is awarded.
Dictated to the Steno, transcribed by him, corrected and pronounced by us in open Forum, this the 16th day of July, 2014.
Sd/- Sd/-
LADY MEMBER PRESIDENT(FAC)
DISTRICT CONSUMER FORUM DISTRICT CONSUMER FORUM
ANANTAPUR ANANTAPUR
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
ON BEHALF OF THE COMPLAINANT: ON BEHALF OF THE OPPOISITE PARTY
-NIL - - NIL
EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT
Ex.A1 Photo copy of the plaint.
Ex.A2 Photo copy of pronotes dt.02.01.2000 & 08.11.1998.
Ex.A3 Photo copy of docket sheet.
Ex.A4 petition filed by the complainant on 01.02.2010 on the file of Mandal Legal
Services Authority, Hindupur.
EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY
NIL
Sd/- Sd/-
LADY MEMBER PRESIDENT(FAC)
DISTRICT CONSUMER FORUM DISTRICT CONSUMER FORUM
ANANTAPUR ANANTAPUR
