IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 26th day of September, 2013.
Present : Sri. Jacob Stephen (President)
Smt. K.P. Padmasree (Member)
C.C.No.20/2013 (Filed on 18.02.2013)
Between:
Jolly Thomas,
Puthenpurackal,
Mukkada.P.O.,
Karikkattoor,
Kottayam Dist.
(By Adv. Brijendralal) ….. Complainant
And:
Sri. Girish Kumar,
Advocate,
Kovidathu Veedu,
Chettimukku.P.O.,
Maramon,
Pathanamthitta Dist.
(By Adv. Mathew Chacko) ….. Opposite party
O R D E R
Sri. Jacob Stephen (President):
Complainant has filed this complaint against the opposite parties for getting a relief from the Forum.
2. Complainant’s case is that he was a resident of Thiruvalla Municipality and she was working at New Delhi from 1994 onwards. While she was working and residing at New Delhi she met with an accident at 5.30 a.m. on 04.06.1999 and sustained severe bodily injuries. Due to the said injuries she had also sustained permanent disability. So she approached the opposite party for filing a motor accident claim case before MACT, Pathanamthitta. She had also given all relevant documents for filing the petition as directed by the opposite party. Accordingly opposite party filed a petition before MACT, Pathanamthitta as MV (OP) 59/01. Thereafter the opposite party told the complainant that her case is pending as and when she enquired about the case. But later complaint feels some doubts about the opposite party from his dealings. So she send a complaint in this matter to the complaint Redressal Cell of the Chief Minister of Kerala who send the complaint to the bar council of Kerala for necessary actions. But opposite party has not appeared before the bar council inspite of the notices of the Bar Council. However in the meantime complainant received a relinquishment letter from the opposite party to the effect that the opposite party had relinquished the vakkalath of the complainant. But he had not returned the case records and other documents connected with the accident of the complainant. Hence the complainant had no documents in her possession. At the same time, Bar Council of Kerala directed the complainant to engage any other advocates for the case. Thereafter on enquiry it was learned that her case before MACT was dismissed during 2003 for the non-appearance of the opposite party before the tribunal. But opposite party had not done anything for restoring her petition before the tribunal. Thus opposite party has not given the required services to the complainant as offered by him. All the above said act of the opposite party is a clear deficiency in service. Because of the above said act of the opposite party there was a delay of 11 years to file a new petition. Due to the above said deficiency in service committed by the opposite party the complainant had sustained mental agony and financial loss which is estimated as Rs.3 lakhs. Hence this complaint for the realization of Rs. 3 lakhs from the opposite party.
3. Opposite party entered appearance and filed version with the following contentions. Opposite party admitted the entrustment of the complainant’s motor accident claim case. The documents produced by the complainant is in Hindi. At the time of filing the petition complainant had hidden the fact that the medical expenses incurred to the complainant had been reimbursed by the employer company. The aforesaid claim petition was filed as a pauper opposite party. After the filing of the petition the complainant turned up to the office of the opposite party only after a 10 years. The complainant had already filed a new claim petition before MACT, Pathanamthitta and the same has been decreed. The petition filed as OP-MV.59/2001 dismissed by the Tribunal for not curing the defect of incorrect address of respondents. For curing the defect the opposite party and his clerk tried to contact the complainant several times. But ended in vain. Lastly an intimation was given to the complainant under certificate of posting for her physical presence. But there was no response from the side of the complainant. The claim petition was dismissed for the above said reasons and due to the non-co-operation of the complainant. Later the complainant came and demanded the file and vakkalath which was returned and she accepted the same without any objection. Further, the opposite party had connected complainant with an advocate of the Supreme Court to get the English version of the documents who had sent the English version to the complainant. For which the complainant had not paid any fees to the complainant and a sum of Rs.3,000/- is due to the advocate. Therefore, there is no merit in this complaint and there is no deficiency in service from the part of the opposite party and this complaint is filed with an intention to wreck vengeance on the opposite party. With the above contentions, opposite party prays for the dismissal of the above complaint.
4. On the basis of the pleadings of the parties, the only point to be considered is whether this complaint can be allowed or not?
5. The evidence of this complaint consists of the oral depositions of PW1, PW2, PW3, DW1 and Exts.A1 and A2 and B1 to B3. After closure of evidence, counsels for the opposite party filed their argument note and both sides were heard.
6. The Point:- The complainant’s allegation is that she had approached the opposite party for filing an MACT case before MACT, Pathanamthitta in connection with the injuries sustained to the complainant in a motor traffic accident occurred at New Delhi on 04.06.1999 while she was working there and entrusted her vakkalath and connected documents to the opposite party. Accordingly, the opposite party filed a petition as O.P.(MV)-59/2001 before the MACT, Pathanamthitta. Thereafter the complainant contacted the opposite party and enquired about the progress of the case on several occasions and on all occasions opposite party told the complainant that the said case is pending. As the case was not decreed so far the complainant felt some doubts in the dealings of the opposite party in connection with that case. So she sent a complaint in this regard to Chief Ministers Complaints Grievances Cell and the said cell forward the complaint to Bar Council of Kerala. In the meantime complainant received a letter relinquishing the vakkalath from opposite party. But the case records are not returned by the opposite party. Thereafter the complainant approached Pathanamthitta MACT and enquired about the present position of the said case and realized that the said case was dismissed during 2003 due to the negligence of the opposite party. Moreover the opposite party has not intimated about the dismissal of the petition or he had not taken any steps for restoring the petition till then. All the above said act of the opposite party put the complainant to mental agony and financial loss and the said act of the opposite party is a clear deficiency in service for which opposite party is liable to the complainant. Hence this complaint for the realization of Rs. 3 lakhs from the opposite party as compensation for the loss and sufferings sustained to the complainant.
7. In order to prove the case of the complainant, complainant and 2 witnesses filed their proof affidavit in lieu of their chief examination along with 2 documents. On the basis of the proof affidavit, the complainant was examined as PW1 and documents produced by her are marked as Ext.A1 and A2 and the witness are examined as PW2 and PW3. Ext.A1 is the photocopy of the order in D.C case No.27 of 2012 dated 02.10.2012 of disciplinary committee of the Bar Council of Kerala passed in the suomoto proceedings between the complainant and opposite party. Ext.A2 is the copy of the petition in O.P.(MV)-59/2001 before the MACT, Pathanamthitta.
8. On the other hand, the contention of the opposite party is that he had filed a petition before MACT, Pathanamthitta as O.P.(MV) 59/2009 for getting the accident claim of the complainant. But the said petition was dismissed on 19.03.2003 for not curing the defect. Before dismissing the petition opposite party intimated the complainant about the noting of the defect by the court and directed the complainant to furnish sufficient materials for curing the defects. But the complainant had not turned up in spite of the opposite parties numerous intimations. The said MACT petition was dismissed in the above circumstances. Opposite party intimated about the dismissal of the petition also to the complainant through one Babu, a relative of the complainant. Thereafter during 2009 November, the complainant approached the opposite party and requested his help for proceeding the case. Accordingly, opposite party arranged the English translation of the case records through an advocate of the Supreme Court, who is a relative of the opposite party. Thereafter during the beginning of 2010 the vakkalath of the complainant was relinquished and returned to the complainant by the opposite party. The MACT petition was dismissed solely due to the non-co-operation of the complainant and opposite party as an advocate performed his duties perfectly and hence there is no deficiency in service or professional misconduct from the opposite party.
9. In order to prove the contentions of the opposite party, opposite party adduced oral evidence as DW1 and 3 documents produced by him has been marked as Ext.B1 to B3. Ext.B1 is the photocopy of the order dated 19.03.2003 in O.P.(MV) 59/2001 of MACT, Pathanamthitta. Ext.B2 is the case docket kept by the opposite party in connection with the MACT case in question. Ext.B3 is a stamped and sealed certificate bearing the name and address of the complainant showing that something had been send by post to the complainant under certificate of posting.
10. On the basis of the available materials on record it is found that the complainant had approached the opposite party for filing a motor accident claim case before MACT, Pathanamthitta in connection with the complainant’s motor traffic accident at New Delhi and opposite party has accordingly filed a petition as O.P.(MV) 59/2001 before MACT, Pathanamthitta and the said petition was dismissed on 19.03.2003 for not curing the defect.
11. The complainant’s allegation is that the opposite party has not given any intimations regarding the status of the petition on any communication regarding the dismissal of the petition so far in spite of the complainant’s enquiries with the opposite party from the date of filing of the petition. On all the occasions when the complainant contacted the opposite party his reply was that the case is pending. This caused some doubts against the opposite party. So the complainant send a petition to the Chief Minister’s Complaint Redressal Grievance Cell and said petition was forwarded to the Bar Council of Kerala from the Chief Ministers office. While so the complainant received vakkalath relinquishment letter from the opposite party in connection with the MACT case. Thereafter on enquiry the complainant realized that her claim petition was dismissed in the year 2003. According to the complainant, the dismissal of the said petition and non-communication regarding the dismissal of the petition till 2010 and non return of the case record is a grave professional mis-conduct from the part of the opposite party and is a clear deficiency in service from the part of the opposite party.
12. Whereas the opposite parties contention is that he had properly send communications regarding the entire matters including the dismissal of the petition and the complainant has not responded to the communications made by the opposite party and he had also returned the case records and the vakkalath relinquishment letter to the complainant and he argued that he had not committed any professional misconduct and deficiency in service to the complainant.
13. For establishing opposite party’s contentions he is relying on Ext.B2 and B3. But it is pertinent to note that the entries in Ext.B2 case docket and Ext.B3 certificate of posting are insufficient for establishing the contentions of the opposite party. The date of certificate of posting is not visible in Ext.B3. The entries shown in Ext.B2 did not show anything about the return of the documents. Opposite party contended that he had relinquished the vakkalath and returned the case records to the complainant during the beginning of 2010 as per the request of the complainant. But on a perusal of Ext.A1, Bar council proceedings it is seen that the relinquishment of vakkalath was made on the basis of the interference of the Bar Council Disciplinary Committee. Other pleading that the complainant had filed a fresh MACT and it was decreed is also not proved by the opposite party. The pleadings, contentions and arguments of the opposite party are not corroborative and are contradictive in nature. Further Ext.B2 and B3 could not be treated as a conclusive evidence for accepting the contention of the opposite party that he had communicated the progress and other developments of the MACT case to the complainant properly as its veracity and credibility are doubtful. Opposite party also failed to adduce any independent evidence. Thus in all respects opposite party failed to prove his contentions. Hence we find that opposite party had committed deficiency in service to the complainant.
14. However, the complainant has not adduced any cogent evidence for proving her claim of a consolidated amount of Rs. 3,00,000/-. So we are not inclined to allow the prayer as claimed by the complainant. Therefore, this complaint can be allowed in part considering the difficulties sustained by the complainant due to the above said deficiency in service of the opposite party.
15. In the result, this complaint is partly allowed thereby the opposite party is directed to pay an amount of Rs.25,000/- (Rupees Twenty Five Thousand only) to the complainant within 15 days from the date of receipt of this order, failing which the complainant is allowed to realize the said amount with 10% interest from today till the realization of the whole amount.
16. In the nature and circumstances, no orders for compensation and cost.
Declared in the Open Forum on this the 26th day of September, 2013.
(Sd/-)
Jacob Stephen,
(President)
Smt. K.P. Padmasree (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Jolly Thomas
PW2 : James Mathew
PW3 : Jose Joseph
Exhibits marked on the side of the complainant:
A1 : Photocopy of the order in D.C case No.27 of 2012 dated 02.10.2012. A2 : Photocopy of the petition in O.P.(MV)-59/2001 before the MACT,
Pathanamthitta.
Witness examined on the side of the opposite party:
DW1 : Girish Kumar
Exhibits marked on the side of the opposite party:
B1 : Photocopy of the order dated 19.03.2003 in O.P.(MV) 59/2001 of
MACT, Pathanamthitta.
B2 : Case docket Original.
B3 : Stamped and Sealed certificate bearing the name and address of the
complainant.
(By Order)
(Sd/-)
Senior Superintendent.
Copy to:- (1) Jolly Thomas, Puthenpurackal, Mukkada.P.O., Karikkattoor,
Kottayam Dist.
(2) Sri. Girish Kumar, Advocate, Kovidathu Veedu,
Chettimukku.P.O., Maramon, Pathanamthitta Dist.
(3) The Stock File.
.
