1.12.08<br /> Sri.K.Gopalan, President<br /> <br /> This is a complaint filed under section 12 of Consumer Protection Act for an order directing the opposite party to pay Rs.1, 50,000/- as compensation.<br /> The case of the complainant in brief is as follows: The complainant entrusted the respondent to appear for her in Cr.R.P.62/98 and 103/98 before the District and sessions Court, Thalassery by giving fixed fees and vakalath. Opposite party failed to appear before the District Court in Crl.R.P.103/98, which was filed by the complainant. The revision petitioner and her counsel being called absent the respondent therein was heard and the petition was dismissed. There is a clear deficiency of service on the part of the opposite party. More over when complainant enquired about the Crl.R.P.62/98 filed against her by her husband the opposite party told her she would be informed. Opposite party did not inform the complainant properly. Hence she asked to return the records. But opposite party did not return the records. But got agitated and told her not to go there afterwards. On enquiry she could understand that the revision was disposed of reducing the amount from 1,90,000/- to 1,00,000/- on 24.8.2001. The Cr.R.P.103/98 was dismissed and in Crl.R.P.62/98 order passed against the complainant reducing the amount were only because of the deliberate absence of opposite party in attending and conducting the cases. Hence the complainant suffered a loss of Rs.90, 000/- in Cr.P.103/98 and incurred a loss of Rs.10, 000/-to file appeal before the Hon’ble high Court. In Crl.R.P.103/98. Complainant also suffered mental pain and sufferings. Hence opposite party is liable to pay Rs.90, 000/- towards the loss of decree amount, Rs.10, 000/- spend for filing appeal and Rs.50, 000/- for mental pain and sufferings which comes to a total sum of Rs.1, 50,000/-.<br /> On appearance before the Forum on receipt of summons, opposite party filed version. The contentions of opposite party in brief are as follows: complainant entrusted the opposite party to conduct two cases in revisional court. Complainant’s sister told him that the petitioner was not in a position to give fees because of the financial stringency. She has no father or brother to help her so that he was asked to help her since her economic background was so poor. It was only because of her poor economic condition opposite party conducted the case without fees. The allegation that she has paid fixed fees is only false. The sister of the complainant came and requested the opposite party to file a revision for the confirmation of the lower court order. She also told that a political leader suggested this. Opposite party explained the weakness of her case. She told then opposite party is speaking infavour of petitioner’s husband. But she insisted to file the revision. It is also told that without sufficient reason for condo nation of delay the revision will not be entertained. On the compulsion the revision was filed with petition to condone delay as M.P.1000/98. The petitioner was examined before the court in the petition to condone delay. The allegation that the respondent failed to file the revision in time and application to condone delay was prepared without the instruction of complainant is false and untrue. Crl.RP.103/98 was dismissed by District Court. There was no information that the revision will be taken for hearing on that day. Revision was taken up and dismissed on that day and immediately that was informed to the complainant, when petitioner and her sister approached the respondent, everything was explained to her and on being convinced they told the respondent to look after the revision filed by her husband and went away. The complainant came after several months and requested to take copy of the dismissal order immediately. The copy of the order was taken and the complainant came and took the order in Crl.R.P.103/98 together with the entire file in Cri.R.P.62/98 to see that the further proceedings in Crl.R.P.62/98 which is filed by her husband is also stayed. They did not bring the file thereafter. On 24.8.2001 that the Crl.R.P was listed and when the matter came up for hearing, the opposite party submitted the entire things and represented that there is no record with the respondent for arguing the case. Then the court gave the file available before the court and asked to argue the case after one hour and thus argued the case. After hearing the case, the Revisional court allowed the revision only for Rs.1, 00,000/-. When it was informed she along with her sister came and on getting convinced about the proceedings they request to take a copy of the order. Thereafter on 5.10.2004, one Suhara who is a relative of the petitioner came and took the copy of the order. There is no latches or deficiency in service on the part of the opposite party. Hence prays to dismiss the complaint.<br /> On the above pleadings the following issues have been taken for consideration.<br /> 1.Whether there is any deficiency on the part of opposite party?<br /> 2.Whether the complainant is entitled for the relief as prayed in the complaint?<br /> 3.Relief and cost.<br /> The evidence consists of oral evidence of complainant as PW1 and opposite party as DW1 and documentary evidence Exts.A1 and Ext.B1 to B5.<br /> Issues 1 to 3<br /> Admittedly complainant entrusted two cases with the opposite party. The opposite party contended that the cases were conducted free of charge. It has come in cross-examination of DW1 that there is no system of issuing receipts while charging the fees. Moreover, there is promise to give the fees after the case is over. This has to be taken into account as future consideration and thus it is not safe to determine that there is no consideration at all even if separate evidences is not brought before this Forum on that aspect since the version itself has mentioned so.<br /> The complainant alleged that the revision was not filed in time and without informing the same to complainant Cr.RP.103/98 filed with condo nation petition. The complainant pleaded thus”…….<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> She has also stated in her chief thus “ I say the revision was filed after the expiry of 132 days along with a delay condo nation petition as Crl.MP.No.1000/98 in Crl.R.P.103/98. I say when the aforesaid petition came before the Hon’ble District and sessions Judge, Thalassery for consideration, the opposite party was neither appeared nor represented the case and thereby the Crl.R.P.103/98 was dismissed on 28.10.2000”. Ext.A1 shows that the petitioner and her counsel were absent when the petition was taken up. Here the question arose first of all whether the revision with condonation petition filed without the knowledge of complainant and secondly whether the opposite party as responsible for the delay and thirdly whether the absence of the counsel was the reason for the dismissal of the case. Ext.B3 is the condo nation petition filed by the counsel for the petitioner. The complainant Shareefa signed the affidavit with the petition. The petitioner there in stated in her affidavit the reason for the delay thus:” I required my counsel to prefer a revision against the order and I was told that a certified copy is to be obtained. Thus on 17.6.1998 a petition for the certified copy was filed. By the 2nd week of July 1998 my eldest sister’s husband fell ill and he was hospitalized. My sister accompanied him to Manipal and Calicut and I was deputed to look after the minor children of my sister. The condition of my sister’s husband got deteriorated and hence I had no other go except to remain in my sister’s house. On 17.10.98 he passed away. On the third day there was a function in connection with the death and on 19th October I met my advocate in Mattannur and I could gather the information that he received the certified copy on 17.8.1998 though it was ready by 23.7.98. In fact due to my preoccupation I could not approach my Advocate and intact I got the certified copy only on 19.10.98 and could file the revision only on 20.10.98. There is a delay of about 132 days”. The affidavit was signed on 24th day of October 1998.<br /> The affidavit filed with the condo nation petition reveals the fact that she has the knowledge of delay petition. In other words it is not true to say that the revision was filed with condonation petition without informing the same to complainant. The affidavit gives the explanation for the delay in filing the revision. It is mainly due to the hospitalization of the husband of her sister and his deteriorating condition, which caused to tie up her in her sister’s house to look after the minor children of her sister. If that were the case the opposite party cannot be blamed for the delay. Moreover it is revealed that the complainant Shareefa got the certified copy of the order dt.11.3.98 in H.C.112/96 of the Judl. Ist class Magistrate, Mattannur only on 19.10.98. The revision filed on 20.10.98. It can be seen the Advocate who conducted the case in Mattannur received the order on 17.8.98. Under these circumstances the burden of delay cannot be attributed upon the shoulders of opposite party.<br /> Ext.B3 shows that Shareefa PW1 examined in Cr.M.P.1000/98 on 19.2.2000. Hence the order in Cr.M.P.1000/1998 passed on merits taking into the consideration of the evidence adduced by the petitioner therein. Ext.B2 is the deposition of PW1 Shareefa in Crl.M.P.1000/1998 in CRl.RP 103/98. She has deposed before the court thus:<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> What PW1 Shareefa deposed before the court speaks itself the reason for the delay of filing the revision and it is self-explanatory. This leads to say the opposite party cannot be blamed for the reason of delay in filing the revision and thus we find no deficiency in service on the side of the opposite party<br /> Another important allegation of the complainant is that the opposite party has not taken any attention toCrl.RP.62/98. The opposite party contended that the complainant took the entire file in respect of Crl.RP.62/98 back when she came to fetch the files in Crl.R.P.103/98. On going through the records it can be seen that one issue had been existed there in respect of the files. Complainant was really intended to change the vakalath and for that purpose she was in need of the file in Crl.R.P, 62/98. When a client expresses his/her willingness to change the vakalath there is every possibility to return the file in the usual course of dealings as far as an Advocate is concerned. The complainant has alleged that….’<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> The opposite party denied these allegations. But in chief complainant has stated nothing of this allegation. Hence the returning of record cannot be ruled out. However the opposite party argued the case utilizing the back file of the court. The case of the complainant with respect to Crl.R.P.62/98 put it in chief is thus “ The crl.R.P.No.62/98 which was filed by my husband was partly allowed reducing an amount of<br /> Rs., 1,00,000/- only because of the negligence on the part of the opposite party”. In other words the amount reduced to Rs.1, 00,000/- from Rs.1, 90,000/- is only due to the negligence of opposite party.<br /> In the cross examination when the question, crl.RP.62/96<br /> Rs.1, 90,000/-<br /> …is put to the witness PW1. there was no answer when again asked <br /> <br /> <br /> Opposite party contended that “the crl.RP.62/98 was considered by the Revision court on merits and the court on its own reasoning reduced the quantum and the opposite party has no say in it. The opposite party has also contended that he has argued the case properly”. Ext.B5 is the order in 62/1998. It is important to note the findings of the court that “ this court accordingly finds that the order of the lower court directing the respondent to pay Rs.90, 000/- as the value of the ornaments require interference because the finding of the lower court on this point is not supported by satisfactory evidence”. This finding makes it clear the amount is reduced due to lack of evidence.<br /> It is well discussed in the order analyzing the point No.2 thus: “The further case of the petitioner is that the respondent has appropriated 30 sovereign of gold ornaments including15sovereigns of her sister”. Evaluation goes thus “Infact there is no satisfactory evidence to show that this lady had 15 sovereigns or ornaments. No independent witness is examined to prove the case that the respondent had received 15 sovereign of ornaments of PW4. The court cannot relay on the uncorroborated evidence of PW4 on this aspect… In such circumstancs the petitioner is not entitled to claim or receive the value of those 15 sovereigns…………The Judicial Magistrates are not expected to deal with such cases lightly or casually. The court cannot grand that a divorced women has approached the court for the relief”. Thus it is quite evident that the verdict of the court is based upon serious analysis of evidence and considering merits. In these circumstances we find no deficiency of service on the part of the opposite party.<br /> In the light of the above discussion it is found that the complainant could not succeed in establishing the deficiency of service on the part of opposite party. The complainant is not entitled to get any relief. Hence the issues 1 to 3 are found against the complainant. The complaint is liable to be dismissed and we do so.<br /> In the result, the complaint is dismissed no order as to costs. <br /> Sd/ Sd/- Sd/-<br /> President Member Member<br /> APPENDIX<br /> Exhibits for the complainant<br /> <br /> A1.True copy of the judgment in RP.103/98<br /> Exhibits for the opposite party<br /> <br /> B1.Copy of the revision petition filed before the Dist. & Session judge, Thalassery.<br /> B2.Deposition of shareefa<br /> B3.Copy of delay condonation petition filed before the Dist.& session judge, Thalassery.<br /> B4.Certified copy of CRP.62/98 of Dist.& Sessions judge, Thalassery<br /> B5.Certified copy of order in CRP.62/98.<br /> <br /> Witness examined for the complainant<br /> PW1.Complainant<br /> Witness examined for the opposite party<br /> <br /> DW1.Abdulrahiman<br /> <br /> /forwarded by order/<br /> <br /> <br /> Senior Superintendent<br /> <br /> Consumer Disputes Redressal Forum, Kannur<br /> <br /> Despatched on<br /> <br /> Through Post/hand<br /> <br /> <br /> <br />