BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 496/2003

Dated : 15.01.2009

Complainant:

Mathew Varghese, Kureekattil House, CRA 201, Chenthi Road, Pongamodu, Thiruvananthapuram – 11.

Opposite party:

Joseph Mathew, Advocate, Thekkedathu House, KRA 95, Medical College P.O, Ulloor, Thiruvananthapuram – 11.

(By adv. V.K. Mohankumar)

This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 31.10.2005, the order was not prepared accordingly. This Forum assumed office on 08.02.2008. This O.P having been heard on 06.12.2008, the Forum on 15.01.2009 delivered the following:

ORDER

SMT. S.K.SREELA : MEMBER

The allegations in the complaint are as follows: The complainant met with a vehicle accident on 19.07.1995 and he was admitted in the hospital and was under treatment of Dr. Cherian Thomas, Orthopaedic Department, medical college, Thiruvananthapuram. Since the said was an accident case, he had entrusted the FIR, FIS, Medical certificate etc. to the opposite party for filing an MACT Case. After the treatment for a period of one month, the complainant was transferred to the Federal Bank, Thuthukudy branch, Tamil Nadu and every time the complainant enquired about the position of his case and he was told that a case has been filed before the MACT and it will take time for trial. When the complainant got transferred to Thiruvananthapuram, he enquired about the actual position of the case and the complainant was told that his case No. is 968/1996 and on enquiry with the court records, it was found that the opposite party had not filed any case for the last 7 years and the number given was wrong and hence this complaint against the opposite party for deficiency in service and claiming compensation.

The opposite party has filed his version contending that the complainant is not a consumer and the complaint is not maintainable. The complainant had come to the opposite party's office and stated that he had an accident and he intended to file a case for compensation before MACT, Thiruvananthapuram. Certain documents were also given for perusal. The opposite party expressed his opinion that he is ready to file a claim before the MACT provided the complainant meets the preliminary expenses for filing the case. But the complainant was not prepared to meet the preliminary expenses and the complainant told the opposite party that he would think over the matter and come to the office of the opposite party without any delay for filing the case before the MACT. The allegation that the complainant used to call the opposite party and enquired about the position of the case etc. is absolutely false and hence emphatically denied. The averment in the complaint that the opposite party told the complainant that the case is pending before the Tribunal and the number is 968/96 is utter falsehood. This opposite party hails from a respectable family and is having 21 years of standing in the bar with high reputation. The intention of the complainant is to tarnish the opposite party in the midst of the society and to grab money through illegal means. This is a vexatious and frivolous complaint filed by the complainant. The complainant has not incurred any financial loss or mental agony on account of the opposite party and hence not entitled to any compensation. The complainant has not paid any amount or promise to pay any amount for hiring the services of the opposite party. The complainant has no consumer relationship with the opposite party and hence this matter cannot be agitated before this Hon'ble Forum. Since this is vexatious and frivolous case filed against the opposite party with malafide intention, the opposite party prayed for dismissal of the complaint with compensatory costs.

The complainant has filed affidavit and has been examined as PW1, marked Exts. P1 to P6 on his side. The opposite party has also filed affidavit and has been examined as DW1, opposite party had no documentary evidence.

On the contentions raised, the following issues are raised for consideration:

1. Whether the complainant has availed the service of the opposite party as envisaged under Sec. 2 (d) (ii) of the Consumer Protection Act and whether he is a consumer as per the provisions of the Consumer Protection Act?

2. Whether there is any deficiency in service on the part of the opposite party?

3. Whether the complainant is entitled for the reliefs claimed for?

Point (i):- The main contention of the opposite party is that the complainant is not a consumer as he has not paid any amount for hiring the services of the opposite party. The opposite party has contended that he was ready to file a claim before the MACT provided the complainant meets the preliminary expenses for filing the cases and which the complainant was not prepared to meet also. The learned counsel for the opposite party vehemently argued that hiring of service for consideration in this case includes the advocate's fee and the preliminary filing expenses, neither of which have been paid by the complainant. At this juncture, the preliminary aspect to be looked into is whether the complainant has hired the service by paying consideration or whether there is any promise to pay the consideration.

On a perusal of the complaint, it is seen that nowhere the complainant has pleaded that he has paid any consideration or had promised to pay any consideration to the opposite party. But, as PW1 the complainant has deposed എത്ര രൂപ വാങ്ങിയിരുന്നു(Q) ഒന്നും കൊടുത്തിട്ടില്ല. അദ്ദേഹം ചോദിച്ചിട്ടില്ല. Initial expense ആവശ്യപ്പെട്ടില്ല. Expense ഉണ്ട് എന്നു പറഞ്ഞു. ഇവിടെ case കൊടുത്തതിന് court fees-ഉം expense-ഉം ഉണ്ടെന്ന് പറഞ്ഞില്ല. Further the complainant has deposed that 'fee കൊടുത്തിരുന്നില്ല, കൊടുക്കാമെന്ന് promise ചെയ്തിരുന്നുമില്ല'. Besides this the complainant had argued that the complainant and the opposite party had come to an adjustment with regard to the fees and accordingly the fee and expense would be adjusted with the award amount at the end. But these arguments do not find a place in the complaint. It is a settled position that decision of a case cannot be based on grounds outside the pleadings and it is the case pleaded that has to be found.

In the above facts and circumstances of the case it is seen that the complainant has not paid any consideration to the opposite party. As no consideration was paid by the complainant for hiring the service of the advocate and as there is no evidence that the complainant had promised to pay any fee to the advocate, the opposite party, we find that the complainant had not hired or availed the services of the opposite party for consideration and he is not a consumer within the meaning of Sec. 2(1)(d) (ii) of the Consumer Protection Act. It is not, therefore, 'a service' within the meaning of the Consumer Protection Act.

In the light of the above, the complaint is dismissed as the complainant is not a consumer as per the Consumer Protection Act. No order as to costs.

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 day of 15^th January 2009.

S.K. SREELA : MEMBER

G. SIVAPRASAD : PRESIDENT

BEENAKUMARI. A : MEMBER

O.P. No. 496/2003

APPENDIX

I COMPLAINANT'S WITNESS :

NIL

II COMPLAINANT'S DOCUMENTS :

P1 - Photocopy of FIR dated 19.07.95 from Adoor police station.

P2 - Copy of accident register-cum-wound certificate(original)

dated 19.07.1995.

P3 - Copy of mahassar dated 20.07.1995 prepared at 10 a.m..

P4 - Copy of mahassar dated 20.07.1995 prepared at 3 p.m

P5 - Copy of charge sheet of FIR No. 411/95 dtd. 08.08.1995.

P6 - Copy of letter dated 24.02.2002.

III OPPOSITE PARTY'S WITNESS :

DW1 - Joseph Mathew

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

PRESIDENT