DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE

PRESENT: Sri. P.C. PAULACHEN, M.Com, LLB          : PRESIDENT

Smt. PRIYA.S, BAL, LLB, MBA (HRM) :  MEMBER

Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER

Wednesday the 31^st  day of May 2023

C.C.266/2022

Complainant

          P.M. Balachandran

          S/o. Kamalakshi Amma,

          House No.C6, Shanthi Nagar Colony,

          Chevayur (P.O),

          Kozhikode – 673 017.

Opposite Party

          Pushpodaran.C

          Advocate,

          Gokul Nivas,  Chandipurath

          Chevayur – P.O,

          Kozhikode – 673 017.

          (By.Adv.Sri. Chandran.P & Adv. Sheeba Joseph)

ORDER

By Sri. P.C. PAULACHEN – PRESIDENT 

           This is a complaint filed under Section 35 of the Consumer Protection Act, 2019.

2.  The case of the complainant, in brief, is as follows:

The opposite party is an advocate. The complainant is a retired Inspector of the Kerala Excise Department. He was denied regular promotion by the department, against which, he approached the Hon’ble Kerala Administrative Tribunal, Kochi Bench by filing a case as KAT No. 6546/2012 to direct the Govt. to implement his promotion and promote to higher post. The case was filed by Adv.Sri.Rajendran, who subsequently became the Judicial Member of the Hon’ble Tribunal. As per his advice, the case file was taken back by the complainant and entrusted to Adv.Sri.Prakash at Ernakulam. But after some postings, Adv. Sri.Prakash informed his inconvenience in appearing before the Hon’ble Kerala Administrative Tribunal and told him to entrust the matter to some other lawyer. He was advised by one of his relatives to entrust the matter to the opposite party. Accordingly, along with his relative, the complainant met the opposite party at his residence and discussed about the case in the month of June 2018.

3.  The opposite party accepted the vakalath of the complainant and agreed to appear before the Hon’ble Tribunal. Towards the expenses of the filing vakalath and to make appearance, the complainant paid Rs.5,000/- as fee to the opposite party. The opposite party agreed to collect the case bundle from the office of  Adv.Sri. Prakash.
4. When he contacted the opposite party after 2 weeks, he was told that the vakalath was filed and the next hearing date would be informed later. After a few months, the complainant met the opposite party at his residence and paid Rs.5,000/- more towards the fee. At that time also, the opposite party informed the complainant that the matter was not taken up for hearing so far and would come up for hearing immediately. Thereafter the complainant paid Rs.5,000/- more to the opposite party in 2 installments.

5. In the month of November 2021, the complainant’s son verified the status of the case through online and it was revealed that the matter was not in existence as it was dismissed on 01-01-2019 for non-representation. It was also revealed that the opposite party did not file vakalath or make any appearance on the behalf of the complainant before the Hon’ble Tribunal. When he contacted the opposite party, he was informed that a restoration petition was being filed and there was nothing to worry. But the opposite party has not done anything so far to restore the matter and was cheating the complainant by giving false information. 
6. After 2 months, the complainant started to send messages to the opposite party demanding the details of the case from 19-01-2022 to 13-03-2022 since the opposite party was not attending his calls. The opposite party never sent a satisfactory reply, but the reply was excuses. Thereafter the complainant issued a registered letter on 20-03-2022 demanding to furnish the details of the case. But there was no response to this letter as well. Hence he issued another registered letter on 25-05-2022 demanding return of the entire case file with no objection certificate. For this letter also, there was no response.
7. The opposite party is withholding the case bundle without any valid reason which prevented the complainant from entrusting the matter to a new counsel. The act of the opposite party amounts to dereliction of duty and because of this attitude the interests of the complainant were adversely affected. The complainant has been deprived of his promotion because of the neglect of the opposite party to represent the case before the Hon’ble Tribunal. He is entitled to get back the entire amount of Rs.15,000/- which was paid to the opposite party as fee along with compensation of Rs.3,00,000/- for causing premature disposal of the case due to the callous negligent approach of the opposite party towards the case. The opposite party is also bound to return the case file to him.
8. On receipt of the notice issued from this Commission, the opposite party entered appearance through counsel. But no written version was filed. Later the opposite party was set ex-parte.    

9. The points that arise for determination in this complaint are :

1. Whether there was any deficiency of service on the part of the opposite party, as alleged?
2. Reliefs and costs.

10. The complainant was examined as PW1 and Exts. A1 to A3 were marked.
11. Heard. Brief argument note was also filed by the complainant.
12. Point No.1– The complainant has approached this Commission against his       lawyer alleging professional negligence on account of deficiency of service.
13. It is well settled that the service rendered by a lawyer would come within the purview of the term “Service” as defined under the Consumer Protection Act. In the case in hand, the complainant has availed the professional service of the opposite party for consideration and therefore the provisions of the said Act would come in to play and the complaint alleging deficiency of service is perfectly maintainable before this Commission.   
14. The main grievance of the complainant is that after accepting the brief, there was negligence and latches on the part of the opposite party to pursue the case filed by him as KAT 6546/2012 before the Hon’ble Kerala Administrative Tribunal, as a result of which, the case was dismissed for want of prosecution on 01-01-2019. It is also the allegation of the complainant that no steps were taken by the opposite party to get the case restored as promised and further there was neglect on his part to return the case file.
15.   In order to substantiate his case, the complainant got himself examined as PW1. PW1 has filed proof affidavit in terms of the averments in the complaint and in support of the claim. Ext A1 is the copy of the letter dated 20-03-2022, Ext.A2 is the copy of the letter dated 25-05-2022 and Ext A3 is the typed copy of the Whats App messages.
16.  The evidence of PW1 stands unchallenged. The opposite party has not turned up to file version and he opted not to participate in the proceedings. Exts A1 to A3 documents also support the case of the complainant. The opposite party has not produced any evidence to disprove the averments in the complaint or to rebut the veracity of the documents produced and marked on the side of the complainant. The case of the complainant stands proved through the testimony of PW1 and Exts A1 to A3. The negligence and latches on the part of the opposite party to represent the case amounts to gross deficiency of service. The attitude of the opposite party in not taking steps for restoration of the case as promised and also the neglect to return the case file to the complainant despite his request also constitute deficient service.
17. It may be noted that the complainant approached the Hon’ble Kerala Administrative Tribunal against denial of promotion and it goes without saying that  due to the dismissal of the case for non- representation, he was put to intense mental agony and hardship, besides monetary loss. The non-filing of restoration application as promised and later the non-return of the case file to the complainant has also resulted in mental agony and inconvenience to him.  The opposite party is bound to return the case bundle to the complainant. Equally, the opposite party is liable to compensate the complainant adequately. Considering the entire facts and circumstances, we are of the view that a sum of Rs.50,000/- will be reasonable compensation in this case.
18. Point No.2 :  In the light of the finding on the above point, the complaint is disposed of as follows:

1. CC 266/2022 is allowed in part. 
2. The opposite party is hereby directed to return the entire case file in KAT 6546/2012 to the complainant.
3. The opposite party is hereby directed to pay a sum of Rs.50,000/- (Rupees fifty thousand only) as compensation to the complainant.
4. The order shall be complied with within 30 days of the receipt of copy of this order.
5. No order as to costs.

Pronounced in open Commission on this the 31^st day of May 2023.

Date of Filing: 13-10-2022.

                     Sd/-                                       Sd/-                                            Sd/-

           PRESIDENT                             MEMBER                                 MEMBER

APPENDIX

Exhibits for the Complainant :

Ext A1 -Copy of the letter dated 20-03-2022.

Ext.A2 - Copy of the letter dated 25-05-2022.

Ext A3 - typed copy of the Whats App messages.

Exhibits for the Opposite Party

Nil.

Witnesses for the Complainant

PW1 - P.M. Balachandran (Complainant)

Witnesses for the opposite parties 

Nil.

                   Sd/-                                        Sd/-                                            Sd/-

           PRESIDENT                             MEMBER                                 MEMBER

                                                                                               True copy,

                 Sd/-

                                                                                                         Assistant Registrar.