BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

C.C. No. 130/2010 Filed on 17.03.2010

Dated : 30.04.2011

Complainant:

Asokan, S/o Raman, Amboli Veedu, Near Meeramkadavu, Kadakkavoor P.O.

(Appeared in person)

Opposite party :

Jayachandran. U, Advocate, Room No. 15, Roll No. K/1117/98, Vasantha Building (Govardhan Building), Vanchiyoor P.O, Thiruvananthapuram.

(By adv. G.S. Sanal Kumar)

This O.P having been heard on 30.03.2011, the Forum on 30.04.2011 delivered the following:

ORDER

SMT. BEENAKUMARI.A: MEMBER

Complainant filed this complaint against an advocate for deficiency in service. The complainant had entrusted his M.A.C.T case to the opposite party in connection with an accident sustained by him on 24.12.2001. Due to the above said accident the complainant was hospitalized for 62 days in Medical College Hospital. At that time the opposite party approached the complainant and took the case with the assurance that within 3 years he will realize the compensation amount. Accordingly he signed the vakalath and paid the advocate fee. Complainant further alleges that it was convenient for him if the case was filed before Attingal M.A.C.T. But the opposite party filed the case before Thiruvananthapuram MACT without his consent. The case number is O.P (MV) No. 890/2002. While the case was pending the complainant went abroad for his earnings. Complainant returned from Gulf after 1½ years. The complainant alleges that the opposite party settled the case with the insurance company without the consent and knowledge of the complainant. The opposite party informed the complainant that the case was settled for an amount of Rs. 1,28,000/-. Later complainant got the information from the opposite party that the case was settled only for Rs. 80,250/-. The matter stands so, till date the opposite party not turned up to serve the copy of the award order to the complainant even after his repeated requests. Later the complainant got some papers and that paper also entrusted to the opposite party by the complainant. Then the opposite party further demanded Rs. 5,000/- more and the complainant has paid the same. But the opposite party even then did not reveal that the papers were the papers relating to the appeal. The complainant states that the opposite party never told anything to him regarding the appeal. The complainant further submits that even after the lapse of 8 years after the accident the opposite party never cared to execute the award order or revealed anything regarding the case to the complainant. In these circumstances the complainant sent a notice to the opposite party demanding to return the entire case bundle to the complainant. The opposite party sent reply to that notice with a counter demand of compensation from the complainant. Hence this complaint.

Opposite party in this case filed version denying the entire allegations levelled against him. The opposite party admitted he has been conducting the MACT case of the complainant and on 31.01.2007 an award was passed allowing the complainant to realize an amount of Rs. 80,250/- as compensation from the respondents together with interest at 7.5% per annum with effect from 07.05.2002 till the date of realization. The opposite party immediately informed the said award to the complainant and thereafter the opposite party in that case preferred an appeal before the Hon'ble High Court since the award amount according to the insurance company was exorbitant and the appeal papers regarding the same was received by the complainant from the Hon'ble High Court. Thereafter the complainant entrusted the said papers to the opposite party for engaging a lawyer to conduct the case before the Hon'ble High Court. As per it the opposite party entrusted the said matter to Adv. Santhan V. Nair and now MACA 1480/2008 which is preferred by the respondent in the said case is pending consideration till date. The complainant after fully aware of the said facts with regard to his case with a view to harass and vex the opposite party and tarnish the image of the opposite party and his profession purposefully on 29.12.2009 sent a registered notice suppressing material facts and alleging falsehood to which the opposite party sent a detailed reply stating the actual facts. After accepting the said reply the complainant again on 14.01.2010 sent a false and frivolous notice alleging falsehood and the said notice was also issued by the complainant with a view to harass and vex the opposite party and to tarnish the image of the opposite party and his profession. Further the statements made by the complainant in the notice are defamatory and derogatory and due to the same also the opposite party sustained severe mental agony and pain which the opposite party estimates to the tune of Rs. 95,000/- and hence the opposite party filed O.S 454/2010 before Munsiff's Court, Thiruvananthapuram and the case is posted to 09.09.2010. The complainant after receiving the summons from the court as a counter blast has filed this case which lacks bonafides. The opposite party clearly stated and also given the copy of the award to the complainant and after understanding the entire facts as an afterthought this false and frivolous complaint has been filed by the complainant which has no locus standi. No amount as alleged was received by the opposite party from the complainant at any point of time and no receipt or any document pertaining to the same was produced by the complainant to substantiate his case. The allegation of the complainant that he paid Rs. 10,000/- and Rs. 5,000/- to the opposite party is a figment of imagination of the complainant. No receipt or document has been produced to prove the same by the complainant and hence there is no consideration or consumer relationship between the complainant and the opposite party and hence the complainant will not come within the purview of the Consumer Protection Act. Hence the opposite party prayed for the dismissal of the complaint.

In this case the complainant has filed proof affidavit and he has been examined as PW1. From the complainant's side 5 documents were marked as Exts. P1 to P5. Opposite party has produced 2 documents which were marked as Exts. D1 and D2.

Points to be ascertained:

1. Whether there is deficiency in service from the side of opposite party?

2. Whether the complainant is entitled to get the reliefs and costs?

Points (i) & (ii):- The case of the complainant is that, he has entrusted his accident claim case (O.P (MV) No. 890/2002) to the opposite party. But the opposite party did not reveal anything regarding the case to the complainant. The complainant alleges that without his consent and knowledge the opposite party settled the case with the insurance company for an amount of Rs. 80,250/- and falsely informed the complainant that the award amount was Rs. 1,28,000/- and the opposite party did not communicate any information regarding the appeal pending before the Hon'ble High Court.

Opposite party in this case is his advocate who was conducting the case for him. Through a detailed version he denied the entire allegations against him. We have carefully examined the pleadings and evidences adduced by both the parties. Ext. P1 is the attested copy of the vakalath filed by the opposite party before the MACT for the complainant. Signature of another advocate is seen in that document. But the complainant has no case against that advocate. Ext. P2 is the copy of notice issued by the complainant to the opposite party dated 29.12.2009. In that notice the complainant alleges that the opposite party has settled the case without his consent and not turned up to serve the copy of award to him etc. Therefore he demanded to return the entire case bundle and to relinquish his vakalath. Ext. P3 is the reply notice dated 06.01.2010 sent by the opposite party to the complainant. Through this notice the opposite party denied the entire allegations against him and he informed the complainant the entire facts regarding his MACT case and its appeal. In that notice the opposite party stated that no negligence or deficiency in service was committed from his part as an advocate and with utmost sincerity, he had handled the case and the allegations in the notice which are defamatory and derogatory has caused great mental agony and hardship to him for which the complainant is liable and responsible to compensate him. Ext. P4 is the copy of reply notice issued by the complainant to the opposite party dated 14.01.2010 demanding the opposite party to return the case bundle and demanding relinquishment of vakalath or otherwise file complaint against the opposite party before CDRF and Bar Council of Kerala. Ext. P5 and P5(a) are the acknowledgement cards signed by the opposite party. In this case the allegation of the complainant against the opposite party is that the opposite party did not turn up to inform the details regarding his case to him. For that reason, before filing this complaint he had sent a notice to the opposite party i.e; Ext. P2 dated 29.12.2009. For that letter the opposite party sent reply on 06.01.2010 i.e; Ext. P3. Through Ext. P3 letter the opposite party has informed all the matter regarding his case and its appeal, to the complainant. Hence there is no cause of action for filing this complaint before this Forum. That letter is the ample proof that there is no deficiency in service from the side of opposite party. As an advocate he has done all his best to his client, i.e; to the complainant. Through Ext. D1 award order, he has proved that the award was not a settlement award. The award was passed on merits. Against that award order the insurance company preferred appeal before the Hon'ble High Court. Ext. D2 is the appeal order. The Hon'ble High Court confirmed the Lower Court Order. From these documents we find that as an advocate the opposite party has conducted the case of the complainant very well. There is no deficiency in service from the side of opposite party. At the time of cross examination the complainant admitted all these facts. The deposition given by the complainant is against his case. He admitted all the actual facts. At the time of cross examination he had deposed to the question put by the opposite party's counsel that 31.01.2007-ല്‍ രണ്ട് ഭാഗവും വിചാരണ നടത്തി കോടതി പാസാക്കിയ വിധിയാണീ കാണിക്കുന്നത് അറിയാമോ? അതേപ്പറ്റി അറിയാം. High Court-ല്‍ നിന്നും നിങ്ങള്‍ക്ക് ഒരു പേപ്പര്‍ കിട്ടിയോ? അറിഞ്ഞു. സുരേഷിന്‍റെ പേരിലാണ് വന്നത്. ഞാനും അറിഞ്ഞു. അപ്പോള്‍ നിങ്ങള്‍ക്ക് കേസ് വിധിയായ വിവരവും അപ്പീല്‍ പോയ വിവരവും നിങ്ങള്‍ അറിഞ്ഞുവല്ലോ? അറിഞ്ഞു. High Court Judgement ആണ് ഈ കാണിക്കുന്നത്. അറിയാമോ? അറിയാം (Ext. D2). അത് പ്രകാരം താഴത്തെ വിധി ശരിവെക്കുകയായിരുന്നുവെന്ന് പറയുന്നു. ശരിയാണ്. വിധി പ്രകാരം വിധി സംഖ്യയും പലിശയുമായി 1,28,000/- രൂപ കിട്ടുമെന്ന് നിങ്ങള്‍ എങ്ങനെ മനസ്സിലാക്കി? വക്കീല്‍ എന്നോട് പറഞ്ഞു. From these deposition of the complainant itself, we find that all the allegations levelled against the opposite party by the complainant are false and frivolous and fabricated one. From the pleadings and other evidence, we find that the complainant has filed this case with an ulterior motive only to harass and tarnish the opposite party and his profession. This Forum cannot entertain this type of vexatious complaints against innocent persons. Hence we find that it is essential to dismiss the complaint with compensatory cost to the opposite party. Hence the complaint is dismissed with a direction to pay Rs. 5,000/- as compensatory cost to the opposite party.

In the result, the complaint is dismissed with a compensatory cost of Rs. 5,000/- to the opposite party.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 30^th day of April 2011.

Sd/- BEENAKUMARI. A : MEMBER

Sd/-

G. SIVAPRASAD : PRESIDENT

Sd/-

jb S.K. SREELA : MEMBER

C.C. No. 130/2010

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - Asokan

II COMPLAINANT'S DOCUMENTS :

P1 - Copy of the vakalath filed by the opposite party.

P2 - Copy of notice issued by the complainant to the opposite party

dated 29.12.2009

P3 - Reply notice dated 06.01.2010 sent by the opposite party to

the complainant.

P4 - Copy of reply notice issued by the complainant to the opposite

party dated 14.01.2010

P5 - Acknowledgement cards.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

D1 - Award order dated 31.01.2007

D2 - Appeal Order dated 01.12.2010

Sd/-

PRESIDENT