D.O.F. 04.01.2010

                                                                                   D.O.O. 02.06.2011

IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR

Present:   Sri. K. Gopalan                                     :        President

                Smt. K.P. Preethakumari                     :         Member

                Smt. M.D. Jessy                                    :        Member

Dated this the 2^nd day of June, 2011.

C.C.No.04/2010

1.  Karimbil Mariyamma Chacko,

    Taliparamba Taluk,

    Malappattam Amsom,

    Chooliyadu Desom.   

2. Karimbil K.C. Mathew,                                     :         Complainant     

    Nediyenga Amsom,

    Kavumbayi Desom,

    Koottumukham                                                

    Kannur District

    (Rep. by Adv. K.V. Manoj Kumar)   

     Martin Thomas,

     Advocate,                                                         :         Opposite Party

     Court Road, Taliparamba.

     (Rep. by T.P. Sabu)

O R D E R

Smt.K.P. Preethakumari, Member.

          This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite party to pay ` 5,00,000 as compensation.

          The case in brief of the complainant is that the opposite party had been conducted the cases having No.O.S.241/05, O.S.303/05 and O.S.236/05 before the Munsiff Court, Taliparamba with respect to the subject of contamination of well water belongs to the complainant’s.  The above three cases had settled as per the mediation talk and terms of mediation had filed before the Munsiff Court and the above said cases were dismissed as per the compromise.  The terms of the settlement is that the waste water tank belongs to the hotel conducted by one Mr. Zackariya has to be closed since it is the reason for polluting the well water in the complainant’s property.  But the above said Zackeriya and others were conducted hotel business continuously without closing the waste water tank, which is the terms of settlement.  As a result the complainant’s were constrained to file O.S.221/06 before Munsiff Court, Taliparamba for restraining the defendants from conducting hotel in plaint ‘B’ Schedule property till the steps are taken for scientific disposal of waste.  This case was also filed and conducted by opposite party on behalf of the complainants.  But to the utter dismay of the complainant, the above suit was dismissed by the Hon’ble Munsiff of Taliparamba.  While going through the Judgement, it is evident that the opposite party had conducted the case.  Carelessly without giving much care and attention.  According to the complainant it is also evident that the opposite party had received money from the defendants in the above O.S.221/06 for not conducting the case efficiently and properly.  The opposite party had failed to produce an experts report to prove that the water in the well is polluted and also failed to examine the technician who had given lab report from the pollution control board.  Moreover he had failed to examine the commissioner who had filed Ext.A7 report in O.S.221/06.  Above all he has failed to examine an independent witness to prove that the new tank mentioned by the defendants and that mentioned in the plaint is one and the same, eventhough the 2^nd complainant wanted the opposite party to do the same.  All these were caused due to the deficient service and unfair practice to opposite party.  The complainant had incurred ` 18,000 for conducting the case by opposite party and further he had received ` 20,000 for giving fees to the advocate for filing appeal and ` 15,000 towards expense for filing appeal.  Above all the complainant had suffered heart attack, on hearing the order of dismissal of the suit and had admitted in Pariyaram medical college for four days and incurred ` 14,000.  So the complainant is entitled to receive the compensation from the opposite party since all these were caused due to the deficient service and unfair practice of opposite party.  Hence the complaint.

          In pursuance to the notice issued by the Forum, opposite party appeared and filed his version contending that the complainant is not a consumer.  Since the opposite party has not received any amount from the complainant and hence the service done was free service.  Eventhough the complainant had entrusted the case to the opposite party, the complainant has not done things properly for conducting the case.  The opposite party used to take certified copies of relevant documents which are necessary for conducting the case properly by spending his own money.  Eventhough the opposite party wanted the complainant for furnishing address of witness; he has shown reluctancy for providing the same.  Eventhough proper instruction was given to the complainant for filing appeal before Sub Court, Payyannur the complainant compelled the opposite party for doing so with his own expense and opposite party was not ready for doing so.  So the complainant filed this complaint.  The complainant has filed an appeal before the Sub-Court, Payyannur upon the judgment in O.S.221/06 which is pending.  In that appeal the complainant has raised that the Munsiff court has failed to give much weightage to both oral as well as documentary evidence produced by the complainant.  So making allegation against opposite party based upon such arguments is meaningless and not justifiable.  Moreover the above said appeal upon the order is O.S.221/06 is pending before the Sub Court and hence the order is not finalized.  So this complaint is not maintainable as per the law.  The opposite party is an advocate having more than ten years of practice including district court and had conducted the above case with utmost care, caution and honest and conducted the case bonafide.  If the Court has not considered the evidence the opposite party cannot do nothing and is painful.  The documents and evidence which are necessary to prove the case of the complainant were produced by the opposite party before the Munsiff Court.  The opposite party had proved before the Munsiff Court, Taliparamba beyond doubt that the defendants in O.S. 221/06 have not complied the terms of Ext.A5 compromise terms and not made a new waste tank, both by producing necessary documents and by oral evidence.  The opposite party had produced Ext.A11, A12, A12(a) and A12(b) documents to prove that the water in the well of plaint “A” schedule property is polluted and also taken out a commission to prove the lie of plaint “A” schedule property and the position of well and that reports were marked as Ext.C1, C2 and C2(a).  Al these documents prove the case of the complainant.  But it is painful that the Hon’ble Munsiff has not given much weightage to the  documentary evidence.  These omission cannot be considered as the deficiency of service of the opposite party who had appeared for the complainant.  If the evidence both oral as well as documentary evidence tendered by the opposite party on behalf of the complainant has given due consideration and weightage the case O.S.221/06 have to be decreed with cost.  But the reverse was happened not due to any default or deficiency committed by opposite party, but due to the error on the part of the Munsiff while considering evidence.  So against the order the complainant can file appeal before the Higher Courts.  So the case is filed only with an intention to harass the opposite party and to make unlawful gain.

          It is not correct to say that the opposite party had received from the complainant ` 18,000 for conducting case, ` 20,000 for giving to High Court Advocate and ` 15,000 as expenses for filing appeal.  The averment that the opposite party has received money from the defendants in O.S. 221/06 and not conducted the case properly are made only to tarnish the opposite party’s fame.  The compensation asked by the complainant is not sustainable and the opposite party has no liability to pay the same.  The opposite party has done at his zenith for conducting the case on behalf of the complainant by using his effort and money.  So the complaint is liable to be dismissed.

          Upon the above contentions the following issues have been raised for consideration.

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

2.           Whether complainant is entitled to any relief as prayed in the complaint?

3.           Relief and cost.

The evidence in the above case consists of oral testimony of PW1, DW1, Exts. A1 to A13 and B1 to B20.

          The complainant’s case is that , suit bearing No.O.S. 221/06 of Taliparamba Munsiff Court was happened to dismiss due to the deficient service and unfair practice of opposite party and to prove his case the 2^nd complainant was examined as PW1 and produced documents such as photocopy of compromise filed before the Munsiff Court in O.S.241/05, copy of judgement in O.S.221/06, copy of commission report filed in O.S.221/06, Pollution Control Board’s lab report with closure notice, enquiry report of Village Officer, Nediyenga, Lab report from Anert lab, Kozhikode, Food Inspector, Taliparamba and K.W.A., Kannur.  Discharge summary from Pariyaram Medical College, copy of complainant dated 06.02.2010 before Sreekandapuram P.S, Lawyer notice, Power of Attroney and copy of complaint filed before DySP.  The opposite party also examined as PW1 and produced documents such as certified copy of the judgment in O.S.221/06, certified copy of the deposition of the 1^st and 2^nd complainant in O.s.221/06, certified copy of the appeal memorandum in A.S.20/10.  Certified copy of the Commisioner’s report in O.S.221/06, certified copy of plaint, photocopy of Power of Attorney, special power of Attorney, copy of lawyer notices, Acknowledgment cards, copy of reply notices, information received under R.I. Act from R.S. office, Sreekandapuram, on 06.09.2010, 22.09.2010, 04.10.2010 and 20.11.2010 etc in order to disprove the allegation against him.  The suit bearing No.O.S.221/06 had filed for a permanent prohibitory injunction restraining the defendants from conducting hotel in plaint B schedule room till the steps are taken for scientific disposal of waste.  This case was filed on the basis of a compromise decree in O.S.241/05.  Actually there was three cases having No.236/05, 241/05 and 303/05 before the Munsiff of Taliparamba with different issues of a same subject matter between the two complainants in this case and K.P. Muhammed Kunhi and K.C. Sakariya and all these three cases were settled as per the above stated compromise.   One of the terms of the compromise is that Mr. K.P. Muhammed Kunhi had agreed to close the waste tank beneath the floor after cleaning it and the impugned case is filed alleging that he had not complied the above terms of the compromise. 

          The complainant’s main allegation against the opposite party is that he came to understand after going through the judgment that the opposite party had conducted the case carelessly without making any effort.  He further alleged that while going through the judgment it will reveal that the opposite party had received money from the defendants K.P. Muhammed Kunhi and K.C.Zackeriya for not conducting the case properly and thereby loose the case.  In order to answer issue No.1 it is to be find out that whether the following allegation made by the complainant against opposite party is correct or not.  Firstly he alleged that opposite party has failed to prove that water in the well is contaminated by taking steps to examine the technician who had given report of pollution control board and by not producing the expert report.   Secondly whether the allegation that he has not examined the Commissioner to prove Ext.A7 report and hence the Munsiff has failed to consider it in evidence is true?   Thirdly the allegation that he was failed to establish that the old waste tank and the new tank are one and the same by examining an independent witness is true.  Fourthly whether it is correct to say that the opposite party has received 53,000 on different occasion towards fee and expenses from the complainant.

          The first allegation is that the opposite party failed to prove that water is contaminated by examining witness.   It is an admitted case that the above said O.S.221/06 had been filed on the basis of compromise Ext.A1.  In Ext.A1 compromise the term No.3 states that “c­v InWdpI-fpT aen-\-s¸-Sp-¯p-hm³ Imc-W-amb sI.-]n. apl-½Zv Ipªn-bpsS Xd-bn ØnXn sN¿p¶ waste tank ipNn-bm¡n Sm¦v aqSp-¶-Xn\v apl-½-ZvIpªn \nÝ-bn-¡p-I-bpT k½-Xn-¡p-I-bpT sNbvXn-cn-¡p-¶p.”  So as per Ext.A1 the defendants in O.S.221/06 themselves admits that the two wells were contaminated and the reason for contamination is the waste tank which is situated on the floor of the plaint “B” schedule property.  Since the complaint is based upon the compromise and it is admitted that the well is being contaminated due to oozing of waste water from the waste water tank, there is no need to prove further.  Moreover while going through Ext.B2 which is the deposition of the 2^nd complainant in O.S.221/06 he deposed as answer to a question that “why he has not produced the documents which shows that the well water is contaminated due to the waste water in the tank”?.  He answered that “InWÀ aen-\-s¸-Sp¶p F¶-Xà Cu tIkv. Compromise  A\p-k-cn¨v \S-¯n-bn-sÃ-¶-XmWv”  From this answer itself shows that he is well aware the fact that there is no need to prove that the well water is contaminated.  The Ext.A4 ie certificate from pollution control board also clearly shows that the well water is contaminated.  The above all document which is marked in O.S.221/08 as A11 and other documents which were produced to prove that the well water is contaminated were marked as A12(a) and A12(b) are public documents received through R.I. Act and hence there is no need to examine a witness to prove that documents and hence they are marked without objection by the Munsiff in O.S.221/06.  So from the above discussion it is very clear that the first allegation made by the complainant against opposite party has no merit at all. 

          Second allegation is that the opposite party failed to examine the Commissioner and the Commission report has not considered in evidence by the Munsiff. But in Ext.B2 deposition, the Hon’ble Munsiff marked the Commission Report as C1, C2 and C2(a) and the Commission Report was taken into account by the Hon’ble Munsiff while writing the judgment which is evident in Ext.A2 judgment.  So this contention also seen baseless.

          The third contention put forwarded by the complainant is that the opposite party has failed to establish that the old waste tank and the new tank are one and the same by examining an independent witness.  But while going through the Ext.A3 which is the Commissioner’s report which were marked as Ext.C1, C2 and C2(a) in O.S.221/06, the commissioner had very specifically written as “`£-WT Ign-¡m-\mbn D]-tbm-Kn-¡p¶ apdn-bpsS Xd-bpsS ASn-`m-K¯v tlm«-ense aen-\-P-eT \nt£-]n-¡m-\mbn \nÀ½n-¨n-«p-ff Sm¦v BsW¶v A\-ym-b-¡m-cn-bpT c­mT {]Xn-bpT ]d-ªp.  ta¸Sn Sm¦n-te-¡mWv ASp-¡-f-bn-se-bpT hmjv t_kn-\n-se-bpT aen-\-P-eT Hgp-Ip-¶-sX-¶pT ]d-ªp.  AXn-\mbn ^näv sNbvX ss]¸pI-fpT ImWphm\mbn km[n-¨p.  tlm«-ensâ Xd-bn-ep-ff Hcp kvfm_v DbÀ¯n t\m¡n-b-Xn Xd-bpsS ASn-bn-te¡v sh«p-IÃv sI«n-bn-«p-f-f-Xmbn  ImWp-I-bp-­m-bn.  BbXv plaster sNbvXn-«n-Ã.  tlm«-ense aen-\-P-eT ta¸Sn Sm¦n-te-¡-ÃmsX thsd Hcp `mK-t¯-¡pT t]mIp-¶-Xmbn ImWm³ km[n-¨n-Ã.”  This statement of the Commissioner along with the term No.3 of the Ext.A1 compromise petition (ie “c­v InW-dp-I-fpT aen-\-s¸-Sp-¯p-hm³ Imc-W-amb sI.-]n. apl-½Zv Ipªn-bpsS Xd-bn ØnXn sN¿p¶ waste tank ipNn-bm¡n aqSp-¶-Xn\v”) proves that both the old waste water tank and the new tank are one and the same and hence there is no need to examine an independent witness for proving the same.  So it is clear that this allegation is also made only for filing this case.

          Yet another point to be decided is whether the complainant has given any amount to opposite party for his service.  The opposite party contended that he has not received any amount from the complainant for his service since he is the brother of one of his friend.  But the complainant contended that he has given altogether an amount of 53,000 to the opposite party in two or three occasion as his fee, fee to High Court Advocate and as expense for conducting cases.  But he has not produced any document to prove that the opposite party had received the above said amount from him.  The opposite party admits that he has an habit of giving receipts for the fees received.  So the complainant failed to substantiate the above contention.

          Further the complainant made a serious allegation against the opposite party that while he was going  through the judgment he realized that the opposite party has received money from the defendants in O.S.221/06 for not conducting the case and thereby loose the case.   But he had deposed before the Forum that “O.S.221/06 A\-ym-b-¯nsâ hn[n hmbn-¨-t¸mÄ FXnÀI£n ]WT hm§n-¨-Xmbn a\-Ên-em-IpT F¶p ]d-ªn-«n-Ã.  ]cm-Xn-bn ImWp-¶p­v F¶p ]d-ªm icn-bm-Wv. A2  t\m¡n-bm ]WT hm§n F¶ ImcyT hy-à-ambn ]d-ªn-«n-Ã.   He again deposed that “I­ss¦ C{_m-lnT F¶ BfmWv FXnÀI£n ]WT hm§n F¶p ]d-ª-Xv.”  But there is no pleadings to this effect and has not produced this person as a witness.  So it is clear that the allegation is also made only for the purpose of the case making serious allegation against a counsel for the matter in which the court has erred in giving much weightage for the evidence produced by the counsel is meaningless, unjustifiable and has far reaching consequences.

          Above all Ext.B4 which is the certified copy of the memorandum of appeal proves that the complainant has filed an appeal having No.A.S.20/10 before the Sub Court, Payyannur.  Ext.B4 also proves that the lower court has failed to give much weight of evidence and not considered facts and probabilities of the case.  No where in Ext.B4, the complainant requested for giving an opportunity for producing further evidence either by way of documentary or oral by remanding back this case.  Moreover all the allegations made against opposite paty is shown as grounds for filing appeal.  So from the above discussion, it is seen that the complainant has failed to establish his case and also found that there is no deficiency on the part of opposite party and hence we are of opinion that the complainant is liable to be dismissed and order passed accordingly.

          In the result complaint is dismissed.  No cost.

                          Sd/-                           Sd/-                    Sd/-

     President                    Member                 Member

APPENDIX

Exhibits for the Complainant

A1.  Copy of the compromise filed in Munsiff Court, Taliparamba.

A2.  Copy of judgment.

A3.  Copy of C.R. before Munsiff Court, Taliparamba in O.S.221/06.

A4.  Copy of report of Pollution Control Board’s lab report with closure  

       notice.

A5.  Enquiry report of Village Officer, Nediyenga.

A6.  Lab report from Avent Lab, Kozhikode.

A7.  Lab report from Food Inspector, Taliparamba.

A8. Lab report from Kerala Water Authority, Kannur.

A9. Discharge summary from Pariyaram Medical College.

A10.Copy of complaint before Sreekandapuram P.S. dated 06.02.10.

A11.Lawyer notice dated 08.02.10.

A12.Power of Attorney.

A13.Copy of complaint before DySP dated 30.03.10.

Exhibits for the opposite party

B1.   Certified copy of judgment in O.S.221/06.

B2.   Certified copy of deposition in O.S.221/06.

B3.   Certified copy of deposition of 2^nd plaintiff in O.S.221/06.

B4.   Certified copy of appeal memorandum in A.S. 20/10.

B5.  Certified copy of Commissioner’s report in O.S.221/06

       dated 12.04.2007.

B6.  Certified copy of temporary report with sketch dated 30.05.2006.

B7.  Certified copy of plaint in O.S.221/06.

B8.  Copy of Power of Attroney dated 23.09.09.

B9.  Special power of attorney.

B10. Copy of lawyer notice dated 10.06.06.

B11.  Acknowledgement card

B12.  Reply letter dated 01.07.06.

B13.  Copy of reply notice with receipt dated 10.06.06.

B13(a).  Postal receipt.

B13(b).  Registered lawyer notice

B14.  Reply letter dated 24.06.06.

B15.  Acknowledgment card dated 15.06.06.

B16.  Application for R.I. Act to Resurvey Office, Sreekandapuram, dated

         06.09.10.

B17.   Application for R.I. Act to Resurvey Office, Sreekandapuram, dated

         22.09.10.

B18.  Information received from above office dated 22.09.10.

B19.  Information received from above office dated 04.10.10.

B20.  Information received from above office 20.11.10.

Witness examined for the complainant

PW1.  Complainant No.2

Witness examined for opposite party

DW1. Adv.Martin Thomas       

      /forwarded by order/

                                                                     SENIOR SUPERINTENDENT