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. 298/2002 Filed on 12.07.2002

Dated : 30.06.2009

Complainant:

B. Vijayakumar, N.M.C XIII/359(PADUA), Near I.O.C Pump, Main Road, Neyyattinkara.

(By adv. K. Satheesh Kumar)

Opposite party:

M.V. Ramachandran, Advocate, T.C 15/1957, Chandrodayam, Vazhuthacaud, Thiruvananthapuram.

(By adv. C.S. Raj Mohan)

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 31.01.2005, the order was not prepared accordingly. This Forum assumed office on 08.02.2008 and re-heard the complaint. This O.P having been heard on 30.05.2009, the Forum on 30.06.2009 delivered the following:

ORDER

SMT. BEENAKUMARI.A: MEMBER

The opposite party is a lawyer who was conducting the case of the complainant before the Hon'ble High Court of Kerala as C.C.C No. 679/2000. The complainant had paid fee to the opposite party for conducting the case. The aforesaid case was originated out of non-compliance of the order passed by the Hon'ble High Court in O.P. No. 22959/98 dated 11.01.1999 wherein the complainant was the petitioner. The complainant states that the opposite party was not prosecuting the case properly. He did not appear before the court on 18.10.2001 on which date the case was posted for hearing. Due to the absence of the opposite party the case was dismissed. After the dismissal of the case the opposite party mislead the complainant and tried to get a satisfaction memo. As a result of the dismissal of the case the complainant suffered a lot due to the deficiency of service of the opposite party. Consequently the complainant had to engage another lawyer for conducting restoration petition and proceed the case. While engaging the opposite party as the counsel of the complainant the opposite party promised and assured the complainant a prompt and proper service and the complainant was expecting the same from the opposite party. But the opposite party failed to do so. The complainant sent a notice to the opposite party on 08.02.2001 asking him to compensate the complainant. But the opposite party did not do so, he sent a mischievous reply. Hence this complaint.

Opposite party filed version contending the allegations levelled against him by the complainant. He stated that soon after the dismissal, the matter was informed to the petitioner and he filed MJC as MJC 172/2001 at his own expense. After filing the MJC the petitioner demanded to return the case bundle and to give up vakalath. That was also done and the petitioner issued an acknowledgement memo. Subsequently the MJC was allowed. The opposite party further stated that the case of the complainant was posted on 18.10.2001 as item No. 496 in the list, on that day the opposite party was engaged in O.P. No. 25942/98 before division bench. The opposite party made alternate arrangement for representing the case. But the counsel entrusted failed to represent the same and the case was dismissed. It is because of the supervening impossibility that the opposite party could not attend the court on 18.10.2001. H ence by spending his own money he filed the above said restoration petition. The opposite party also stated that he did not receive any fee from the petitioner. The MJC No. 172/2001 filed by the opposite party to restore the case was allowed subsequently. Hence there is no wilful negligence on the part of the opposite party. Hence he prayed for the dismissal of the complaint.

In this case complainant filed proof affidavit and examined him as PW1 and the opposite party cross examined the complainant. From the side of complainant 3 documents were marked as Exts. P1 to P3. The opposite party also filed affidavit and examined as DW1 and he was not cross examined by the complainant. From the side of opposite party 3 documents were marked as Exts. D1 to D3. In this case the affidavit filed by the complainant stands unchallenged.

Points that would arise for consideration are:-

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):- In this case the complainant has produced 3 documents to support his case. The document marked as Ext. P1 is the copy of notice issued by the complainant to the opposite party demanding to pay Rs. 25,000/- as compensation dated 08.02.2002. Ext. P2 is the copy of reply notice issued by the opposite party to the complainant dated 28.02.2002. In that reply notice the opposite party clearly stated that the MJC was allowed by the Hon'ble Court on 06.02.2002 accepting the reasons stated in the affidavit of the MJC filed by the opposite party and also opposite party stated in the notice that even after the dismissal of the case the complainant had no complaints against the opposite party and accordingly he filed the MJC to restore the case and thereafter the complainant entrusted another counsel to appear for him in the M.J.C. Ext. P3 is the copy of dismissal order of C.C.C No. 679/2000 dated 18.10.2001. The reason for the dismissal was no representation for the petitioner. From these documents we could see that the case of the complainant was dismissed on 18.10.2001 for the reason that there was no representation from the complainant's side. From Ext. P2 reply notice we have understood that as per the petition filed by the opposite party the case was restored and hence there was no cause of action to file this complaint against the opposite party. And also we are of the opinion that the complainant was fully aware of the actual facts of the case. After restoring the case there was no grievance to the complainant. It is a common practice in legal profession in certain circumstances that such defects happen not due to wilful negligence on the part of the counsel concerned and law itself has provided remedy to cure the same. In this case to contend the allegation against him the opposite party has produced 3 documents. Ext. D1 is the letter signed by the father of the complainant to the opposite party. In that letter the father of the complainant stated that he has no grievances regarding the conduct of the case and all the documents received from the opposite party on behalf of the complainant and it is seen in that document at that time the opposite party has been already filed the M.J.C to restore C.C 679/2000. Ext. D2 is the attested copy of the order of M.J.C No. 172/2001 dated 05.02.2001. From this order we find that the petitioner has the liberty to file a fresh petition. From this order the complainant has restored the case as fresh petition. Ext. D3 is the attested copy of the M.J.C No. 172/2001 supported by the affidavit filed by the opposite party. This document is the evidence that the M.J.C was filed by the opposite party. In supporting affidavit the opposite party narrated the details of non-representation. On the basis of the reasons stated in the affidavit of the opposite party, the Hon'ble High Court allowed the M.J.C. And thereafter the complainant's case restored and allowed. Hence the aspect to be looked into to attribute deficiency in service on the part of the opposite party's counsel is that, whether he has initiated the legal proceedings in time to restore the case dismissed for his fault. On a perusal of Ext. D3, it is evident that, the opposite party has taken necessary action time. From the above mentioned discussions we are of the view that there was no negligence or wilful default from the side of the opposite party and the complainant has not suffered any harm or loss due to the act of the opposite party. The complainant has filed this complaint before this Forum on 12.07.2002. The M.J.C No. 172/2001 ordered on 05.02.2002 i.e; 5 months before filing the complaint. Hence the complainant has filed this complaint without any reason. We cannot entertain this type of baseless complaints. For lodging a complaint before Consumer Forum no court fee is payable and so petitioners have a tendency to misuse the provisions of the Consumer Protection Act and ask for any amount in the name of damages. We find that this complaint is with malafide intention in order to tarnish the image of the opposite party without any cause of action.

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 June 2009.

BEENAKUMARI. A : MEMBER

G. SIVAPRASAD : PRESIDENT

S.K. SREELA : MEMBER

O.P. No. 298/2002

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - B. Vijayakumar

II COMPLAINANT'S DOCUMENTS :

P1 - Copy of notice issued by the complainant to the opposite

party dated 08.02.2001.

P2 - Copy of reply notice dated 28.02.2002 issued by the

opposite party to the complainant.

P3 - Copy of dismissal order of C.C.C No. 679/2000.

III OPPOSITE PARTY'S WITNESS :

DW1 - Ramachandran Thampi

IV OPPOSITE PARTY'S DOCUMENTS :

D1 - Letter signed by the father of the complainant dated 19.11.2001.

D2 - Attested copy of the order of M.J.C No. 172/2001 dated 05.02.2001.

D3 - Attested copy of M.J.C No. 172/2001supported by the affidavit filed by the opposite party.

PRESIDENT