Date of filing :27.7.2018

Judgment : Dt.23.12.2019

Mrs. Balaka Chatterjee, Hon’ble Member

            This petition of complaint is filed under section 12 of C.P.Act, 1986 by (1) Prasanta Chandra Sen and (2) Smt. Krishna Sen alleging deficiency in service on the part of the opposite party (referred as OP hereinafter) namely (1) Mukul Kumar and impleading (2) Punjab National Bank and (3) State Bank of India as Proforma OPs.

            Facts in brief are that the Complainants hired service of the OP No.1 for representing their case in capacity of an Advocate for a criminal appeal being No.75/13 filed by the Complainants. The Complainants have stated that they paid Rs.4,63,000/- to the OP No.1 for taking steps in the said appeal but in spite of that the said OP did not take any step since 15.4.2013. It is further stated by the Complainants that they served a letter on 25.5.2016 upon the OP No.1 stating dissatisfaction on the negligent, deficient and irresponsible acts on the part of the OP No.1 requesting him to refund the said amount as the OP No.1 did not take steps in respect of the said appeal and the said amount was paid to him for taking steps in that appeal. The Complainants have stated that they further served a letter dt.13.6.2016 requesting the OP No.1 to refund the said amount as the same was received by the OP No.1 but the same remained unreplied. The Complainants have also stated that in course of sending letters, the OP No.1 instituted a Money Suit being No.451 of 2016 before the 10^th Sub-Judge.  The Complainants specifically stated that they had paid an amount of Rs.4,63,000/- to the OP No.1 for taking steps in appeal No.75/2013 but the OP No.1 did not take step and, therefore, liable to refund that amount.

            Hence, the Complainants have filed the instant case praying for direction upon the OP No.1 to refund Rs.4,63,000/- along with interest @ 10%p.a., to pay Rs.1,00,000/- towards compensation for deficiency in service and/or unfair trade practice, to pay Rs.80,000/- to the Complainants for mental agony and harassment, to pay Rs.50,000/- towards cost of litigation.

            The OP No.1 by filing written version has stated inter alia, that this Forum has no territorial jurisdiction to adjudicate the matter.

            The proforma OPs also filed written version stating that the Complainants are not consumer under them.

            The Complainants adduced evidence in affidavit. The OP No.1 adduced evidence on affidavit stating that the Complainants paid the said amount for taking steps for 3 cases which he had done but for the Criminal Appeal being No.75/2013 the Complainants without informing him engaged another Advocate hence he did not take steps and, therefore, there is no deficiency on part of him.

            Proforma OPs also adduced evidence on affidavit.

            In course of argument, Ld. Advocate on behalf of the Complainants submitted that the case is maintainable before the Forum.

            Ld. Advocate o n behalf of the OP No.1 raised the issue of territorial jurisdiction.

            Points for determination

1. Whether the case is maintainable before this Forum.
2. Whether there is deficiency in service on the part of the OP
3. Whether the Complainant is entitled to the relief as prayed for

Decision with reasons

Point No.1:

The Complainants have stated that they had paid Rs.4,63,000/- towards fees of the OP No.1 for conducting their Criminal Appeal in the footings of an Advocate The Complainants have alleged that in spite of receiving the said amount the OP No.1 did not take any step in respect of the Criminal Appeal which led conviction of the Complainants. It implies that the Complainants paid for availing of service to be provided by the OP No.1 and thus became consumer under the OP No.1 . The Complainants have alleged that the OP No.1 in violation of the agreed terms did not take any step to the said Criminal Appeal, which amounts to deficiency in service on the part of the OP No.1.

Since the Complainants are consumer under the OP No.1 as per provision of Section2(1)(d) of the C.P.Act and alleged deficiency as per provision of Section 2(1)(g) of the C. P. Act and the part of cause of action arose within the territorial jurisdiction of this Forum as the payment was made through the Bank (OP No.2 & 3 herein) address of which falls under the territorial jurisdiction of this Forum and value of the case is well within the pecuniary jurisdiction of this Forum, the instant case is maintainable in its present form.

Point No.1 is decided accordingly.

Point Nos.2 & 3 :- The Complainants claimed to have engaged the OP No.1 for taking steps as an Advocate in a criminal case being No.75/2013 filed by the Complainants at Ranchi and paid Rs.4,63,000/- towards fees of the OP No.1. Payment receipts show that the Complainants paid Rs.4,63,000/- to the OP No.1.

The order sheets in respect of criminal appeal being No.CIII 75/2013 filed by the Complainants show that the OP No.1 did not take any step since 15.4.2013.

Since the Complainants hired service from the OP No.1 for taking steps in Criminal Case Being No.75/2013, but the OP No.1 failed to perform the promised role, which amounts to deficiency in service on the part of the OP No.1.

As regards reliefs prayed by the Complainants, we find that the Complainants had paid an amount of Rs.4,63,000/- for three cases. However, the Complainants alleged that the OP No.1 took no steps in Criminal Appeal being No.75/2013 and regarding other two cases raises no allegations. It is, therefore, in our view, that 1/3^rd portion of the paid amount will be refunded to the Complainants since no step has been taken by the OP No.1 in Criminal Appeal being No.75/2013.

As regards compensation, we are of opinion that an amount of Rs.20,000/- will serve the purpose. Further, the OP No.1 compelled the Complainants to file the instant case and, therefore, is liable to pay cost of litigation to the Complainants, which as per our assessment is Rs.10,000/-.

Point Nos.2 & 3 are decided accordingly.

            In the result, the instant Consumer Case succeeds in part.

            Hence

ordered

            That CC/454/2018 is allowed in part on contest with cost.

            The OP No.1 is directed to refund Rs.1,54,333/- to the Complainants.

            The OP No.1 is further directed to pay Rs.20,000/- towards compensation and Rs.10,000/- towards cost of litigation to the Complainants.

            All payments should be made within two months from the date of this order failing which the refundable amount shall carry interest @8% p.a. which shall be credited to the Complainants.