DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BARNALA, PUNJAB.
Complaint Case No : 234/2016
Date of Institution : 22.01.2016
Date of Decision : 28.04.2016
Davinder Pal son of Ram Kumar resident of Devindera Book Depot, Ram Bagh Road, Barnala, Tehsil and District Barnala.
…Complainant
Versus
Dhiraj Kumar Advocate, District Court Barnala, Barnala.
…Opposite Party
Complaint Under Section 12 of Consumer Protection Act, 1986.
Present: Sh. Davinder Pal complainant in person.
Quorum.-
1. Shri S.K. Goel : President.
2. Shri Karnail Singh : Member
3. Ms. Vandna Sidhu : Member
ORDER
(SHRI S.K. GOEL PRESIDENT):
The complainant namely Davinder Pal has filed the present complaint under the Consumer Protection Act, 1986 (in short as Act) against the Dhiraj Kumar Advocate (in short as the opposite party).
2. In the complaint the complainant has averred that he hired the services of the opposite party for his cases in the lower court as well as in the session court and had paid full consideration money to the opposite party. He further averred that in the case code No. 201800000162015 the said Dhiraj Kumar Advocate filed a case in the session court but negligently the said Advocate could not appear and he even did not supply any information to the complainant, so the Additional Sessions Judge Sh. Harpal Singh dismissed the case of the complainant.
3. The complainant further averred that the said Dhiraj Kumar Advocate had taken Rs. 15,000/- for filing contempt against Inderjit Singh, Mandeep Singh and Gurdeep Singh but negligently till today he failed to file this case. Thirdly in the case code No. 200500008222013 Dhiraj Kumar Advocate negligently did not examine Tehsildar, Clerk, Scriber and Numberdar and took Rs. 2,500/- from him but he never examined these witnesses and due to that the complainant failed to prove the mortgage deed. The complainant further averred that the opposite party took Rs. 5,000/- as fee of local commissioner but he never appointed any local commissioner in the complaint cases.
4. The complainant further averred that the opposite party had taken Rs. 2,10,000/- as consideration amount, Rs. 35,000/- as witnesses charges, Rs. 5,000/- as charges for local commissioner and Rs. 1,00,000/- as miscellaneous charges like typing etc. but the opposite party had not given any receipt demanded by the complainant many times. The complainant further alleged that he had paid Rs. 1,00,000/- for hiring new counsel to defend his cases. It is further alleged that due to the negligence of the opposite party the complainant has lost the cases and has also lost his reputation in the market and has to prefer the appeals. It is also averred that the complainant made repeated requests to the opposite party to reconnect his cases by appearing but the opposite party flatly refused to do so. Hence the present complaint is filed seeking the following reliefs.-
1) The opposite party may be directed to pay Rs. 2,10,000/- as consideration amount, Rs. 35,000/- as witnesses charges, Rs. 5,000/- local commissioner charges and Rs. 1,00,000/- as miscellaneous charges.
2) To pay Rs. 15,00,000/- for mental agony and harassment.
3) To pay Rs. 3,000/- as litigation expenses.
5. We have heard the complainant and have gone through all the record on the file carefully.
6. The complainant has submitted that he hired the services of the opposite party for defending his cases in the lower court as well as in the Learned Sessions Courts and he paid Rs. 2,50,000/- as consideration amount etc. He further submitted that due to the negligence of the opposite party he has lost the cases and he has occurred the financial loss and his goodwill. He further submitted that there is deficiency in service on the part of the opposite party and therefore, the consideration amount may be ordered to be returned alongwith compensation for harassment and litigation expenses.
7. The first question arises whether the complainant is a consumer. Section 2 (1) (d) of the Act defines the term consumer as under.-
“(d) “consumer” means any person who-
(i) buys any goods for a consideration which has been paid or promises or partly paid and partly promises, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promises or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) (hires or avails of) of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who (hires or avails of) the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person (but does not include a person who avails of such services for any commercial purpose).”
8. In the present case the complainant has alleged that he has hired the services of the opposite party i.e Advocate and paid Rs. 2,50,000/- as fee and other expenses. It is also the requirement of law that every complaint is accompanied with the necessary documents for proving his claim made in the complaint. As in the complaint the complainant has alleged that he paid Rs. 2,50,000/- but the complainant has not placed on record any receipt showing the payment as alleged. Even the complainant has not produced any cheque/draft or any bank voucher or document to prove that he has paid certain amount as fee for defending his cases to the opposite party. Oral plea taken in the complaint that he has paid Rs. 2,50,000/- cannot take the place of documentary evidence. Therefore, the case of the complainant does not fall within the ambit of consumer as defined under Section 2 (1) (d) of the Act as referred to above.
9. Even otherwise, the complainant has alleged that the opposite party is negligent in defending his cases and has further submitted that due to that he lost his goodwill. It is worth mentioning here that the procedure for deciding the complaint in this Forum is of summary nature and to prove the negligence of the Advocate or misrepresentation if any, the evidence of the witnesses as well as their cross examination is required at length so as to decide the matter completely and effectively. In order to follow this detailed procedure the complainant is at liberty to approach the civil court.
10. It is also observed that the complainant has an efficacious remedy to file a suit for recovery in the civil court, if he so advised and by approaching this Forum under Consumer Protection Act, it will be a misuse of process of law as it aims to cause loss to the Government exchequer by not paying the court fee.
11. As a result of above discussion there is no merit in the present complaint, so the same is not admitted and accordingly dismissed. However the complainant is at liberty to seek his remedy before the appropriate court, if he desires so. No order as to costs. Copy of this order be supplied to the complainant free of costs. The file be consigned to the records.
ANNOUNCED IN THE OPEN FORUM:
28th Day of April 2016
(S.K. Goel)
President
(Karnail Singh)
Member
(Vandna Sidhu)
Member
