ADV. RAVI SUSHA, MEMBER.
Complainant’s husband died in an accident due to electrocution on 13..8..2003 and for conducting a case for getting compensation of Rs.4,00,000/- from KSEB, paid Rs.4000/-to the opp.party as case filing fees on 5..1..2004. After that the complainant came to understand that on 2005 the opp.party filed the case before the sub court, Kollam for getting compensation. After that the complainant contacted the opp.party at his adv office at many time and made payment Rs.500/- 1000/- as legal fee. O 28..6..2009 when the complainant enquired in the court about the case through one Advocate clerk, it is learnt that the case was dismissed due to the lack of appearance of the Advocate before the court and due to lack of taking steps against the opp.party. When the complainant informed the said facts to the opp.party, he had given vakalathu Relinquish Memo to the complainant. Hence the complainant filed this complaint alleging deficiency in service on the side of the opp.party.
The opp.party filed version contenting that the complaint is not maintainable under law or on facts. Complaint is baseless totally misconceived, groundless unsustainable and hopelessly barred by limitation which is liable to be dismissed as such. All averment contained in paragraph 1 in the complaint are not fully correct and hence denied. The averment that complainant had paid Rs.4,000/- to the opp.party is totally incorrect. The complainant had not paid any money as alleged either as on 5..1..2004 or on any future date as alleged claiming payment of Rs.500/- and 1000/- at different occasions without mentioning date is only a wild imagination of the complainant. It is a fact that complainant had not paid any sum to this opp.party at any point of time. It is understood by the opp.party that the place of residence of said Sunandan the father of the deceased at Ward No.4 of Azheekal Ward was washed away drastically by Tsunami waves as on 26th day of December 2004. Later on enquiry it is reliably understood that Sunandan and his family were living at Tsunami8 relief shelter camp and the complainant had abandoned the company of Sunandan as a part of quarrel and left Azheekal and no knowledge regarding the exact place of stay of said complainant. When enquiry is made especially of signifying the consequence of limitation attributable to a cause of action the family of Sunandan adapted a recalcitrant approach and informed that they are having any connection with the complainant and having any interest in the issue. The running of time with out filing of the suit for damages believe civil court ultimately will lead and result irreparable loss up on the Legal heirs, the opp.party made further enquiry through Vipin S/o. Purushan residing at Punnapura who was then driver of the opp.party who made valid attempts and finally traced Later convinced regarding dire requirement of filing of the suit for damages before subordinate judges court at Kollam. Later complainant when came to the residence of the opp.party had informed that at present were not cordial with Sunandan and other family members due to obvious family issues. At that point of time the complainant had requested aid of the opp.party for filing the Suit for damages and complainant reiterated the fact of her financial constraints and her inability to afford any court fee or any filing expense at that stage. Opp.party considering the plight a helping hand was provided and suit for damages was filed as OP [indigent] and all relevant petitions even with out accepting any fee or expenses from the complainant. The complainant filed the same before the Shirastadar personally fully assisted by the opp.party. All expenses stamps clerical expenses in this regard was met by the opp.party alone.. After filing the OP [LP] the complainant did not turned back and had not cooperated with the proceedings from the very inception. Complainant was fully convinced by the opp.party regarding the fact and necessity for her personal appearance before the court so as to complete the enquiry proceedings in the Indigent Petition and court on subjective satisfaction will number the case as OS on lieu of Indigent Petition so as to enable a contest of the case. The case was called on 23..12..2005 and was dismissed on the first instance for absence of parties and non representation. That fact of dismissal was informed and wailed till last day for filing her affidavit but had not turned up. Hence opp.party had filed restoration Petition I.A. 361/2006 by filing an affidavit so as to safeguard the interest of the complainant In this regard the court is bound in the ordinary circumstances to issue notice to the Indigent Petitioner before dismissal . The fact of filing restoration Petition ia.361/2006 was again personally made known through Vipin and found her from Alappuzha Beach Ward in a residence of her relative and called up on her to approach the opp.party to let evidence but had not approached the office or residence of the opp.party. The restoration petition IA 361/2006 was also kept in abeyance and finally dismissed as on 28..10..2006 for want of steps. The fact of dismissal was again personally made known through Vipin and demanded to bring a medical certificate but had not turned up. Later opp.party convinced regarding the need of filing a restoration petition other than through the office of the opp.party and vakalath was relinquished. Now the same is highlighted with out any cause after elapes of time.
Points that would arise for consideration are:
1. Whether there is deficiency in service on the part of the opp.parties
2. Reliefs and costs
For the complainant PW.1 was examined and Exts. P1 to P3 marked.
For the opp.parties DW.1 was examined and Exts D1 to D4 marked
POINTS:
In this case there is no dispute that the opp.party has filed OP [IP] for the complaint before the subordinate court, Kollam. Complainant’s dispute is that the said OP was dismissed due to the negligence on the part of opp.party. Opp.party also admits that the OP [I.P] was dismissed due to the non appearance of the complainant and due to non representation. According to the opp.party the OP was dismissed due to the non appearance of the complainant and if she had approached the advocate office as per the instruction, there was no impediment to resolve the issue of restoring the OP [IP]. Opp.party’s contention is that the case was called on 23..12..2005 and was dismissed on the first instance due to the absence of parties and non-representation. That fact of dismissal was informed to the complainant and waited till the last day for filing the complainant’s affidavit but she had not turned up. Hence the opp.party filed restoration petition by filing an affidavit so as to safeguard the interest of the complainant. The fact of filing restoration petition was again personally made known to the complainant through one Vipin and found the complaint from Alappuzha Beach ward in a residence of her relative and called upon her to approach the opp.party to give evidence but she had not approached the office or residence of the opp.party and finally the IA was dismissed on 28..10..2006 FOR WANT OF STEPS. That fact of dismissal was again personally made known through Mr. Vipin and demanded to bring a medical certificate but she had not turned up. Complainant’s case is that after filing the OP {IP] she had many times contacted the opp.party at his office, but the opp.party did not inform the actual position of the case and only on 28..6..2009 she realized the dismissal of the case . But during the evidence time the complainant could not adduce any evidence to show on which dates she had contacted the opp.party at his office. From her evidence it is clear that she was at Alappuzha district for about 6 years. On considering the entire evidence the complainant could not prove her case that due to the negligence on the part of the opp.party, her OP [IP] was dismissed. According to opp.party after filing the OP [IP] the complainant did not turned back and had not co-operated with the proceedings from the very beginning . Moreover the complainant was fully convinced by the opp.party regarding the fact and necessity for her personal appearance before the court so as to complete the enquiry proceedings to transform OP [IP] tp OS. Opp.party further raised contention that he had not received Rs.4000/- as advocate fee and the complainant had not paid any money as alleged either as on 5..1..2004 or on any future date as alleged either claiming payment of Rs.500/- and Rs.1000/- at different occasions. According to the opp.party the complainant had paid any sum to him at any point of time. The complainant could not prove the said contention either by producing any receipt or any other document.
Here the opp.party is a practicing Lawyer. Without convincing evidence an Advocate cannot be found negligence in his profession.
Here on considering the entire evidence we are of the view that there is no deficiency in service as alleged by the complainant on the part of opp.party.
In the result the complaint fails and the same is hereby dismissed without cost.
Dated this the 7th day of May, 2012.
I n d e x
List of witnesses for the complainant
PW.1. Veena
List of documents for the complainant
P1. – Memo
P2. – Restoration application
P3. – Copy of order in I.A.No.361/2006
List of witnesses for the opp.parties
DW.1. – Venugopal
List of documents for the opp.parties
D1. – Letter sent by complainant to the Electrical Inspector
D2. – Copy of writ petition No.18072/2004
D3. – Order of High Court in writ petition
D4. – Application of the complainant
