Chandigarh

DF-I

CC/176/2016

Kuldeep Singh - Complainant(s)

Versus

Sh. Sham Lal Bhalla - Opp.Party(s)

Madan Gopal

28 Nov 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

 

 

                               

Consumer Complaint No.	:	CC/176/2016
Date of Institution	:	14/03/2016
Date of Decision	:	28/11/2018

 

Kuldeep Singh son of Tara Singh resident of Ward No.5, Near Lala Lajpat Rai High School, Bassi Pathanan, Distt. Fatehgarh Sahib.

… Complainant

V E R S U S

Sh. Sham Lal Bhalla, Advocate, resident of House No.3078, Sector 37-D, Chandigarh.

… Opposite Party

 

CORAM :	SHRI RATTAN SINGH THAKUR	PRESIDENT
	MRS. SURJEET KAUR	MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

                                                                     

ARGUED BY	:	Sh. Madan Gopal, Counsel for complainant.
	:	Sh. Santosh Sharma, Counsel for OP.

 

Per Rattan Singh Thakur, President

1.         The long and short of the allegations are, complainant retired from the Punjab Police and during his service tenure, he engaged OP as an advocate to file a writ petition on his behalf regarding his promotion as Head Constable.  Fee of Rs.16,000/- was paid as part payment in January 2013.  Accordingly, CWP No.4236 of 2013 was filed which was decided on 27.2.2013 by the Hon’ble High Court and the State of Punjab was directed to decide the notice issued by the complainant.  However, as no relief was granted by the State of Punjab, another writ petition bearing CWP No.12886 of 2014 was filed by the complainant in which the OP was engaged as a counsel and a sum of Rs.30,000/- was paid in June 2013 alongwith Rs.5,000/- as miscellaneous expenses and Rs.10,000/- as balance counsel fee of the previous writ petition.  However, the said writ petition was dismissed for non-prosecution by the Hon’ble High Court vide order dated 15.7.2015. It is the case, it tantamounts to deficiency in service on the part of the OP, a practising advocate.  Notice was issued to the OP which was wrongly replied of him being busy in another court and the OP claimed that in three cases he was engaged and amount of Rs.86,000/- is still due to the OP from the complainant.  Hence, prayed for compensation of Rs.1,00,000/-, refund of Rs.61,000/- and litigation expenses. 
2.         OP contested the consumer complaint and denied the allegations of any deficiency in service. His claim is, this consumer complaint is not maintainable as the decision rendered by the Hon’ble National Commission, on appeal filed on behalf of the Bar of Indian Lawyers, Hon’ble Supreme Court had suspended the operation of the said decision in which it was held that client falls in the definition of a consumer and the consumer complaint on account of deficiency in service is maintainable against the advocate.  His case is, since the operation of the judgment has been suspended and the Hon’ble State Commission, whose decision was reversed by the Hon’ble National Commission, had already held that client is not a consumer, therefore, the advocates are outside the scope and purview of the Consumer Protection Act, 1986.  It is the case, there was a strike and another defence was that he was busy in another case and after he came to know that the writ petition had been dismissed for want of prosecution, he had contacted the complainant to come and sign the petition to get the order set aside and restore the writ petition. Not only this, so much so, without getting the power of attorney withdrawn from the OP, the complainant had engaged another counsel who had already moved an application for the restoration of the writ petition alongwith application for condonation of delay and to this effect photocopy of the record produced.  Further case is, OP had not been deficient in rendering services. Rather counter claim has been put forth claiming fee due to the OP from the complainant. On these lines, the cause is sought to be defended.
3.         Rejoinder was filed and averments made in the consumer complaint were reiterated.
4.         Parties led evidence by way of affidavits and documents.
5.         We have heard the learned counsels for the parties and gone through the record of the case.  After appraisal of record, our findings are as under:-
6.         Per record produced, i.e. copy of SLP (C) No.3052 of 2008 etc., titled as Bar of Indian Lawyers Vs. D.K. Gandhi & Anr., preferred before the Hon’ble Supreme Court, against the order dated 6.8.2007 passed in R.P. No.1392 of 2006 of the Hon’ble National Commission, the operation of the order of Hon’ble National Commission was suspended.  It is also made out, Hon’ble National Commission had reversed the order of the Hon’ble State Commission which was under challenge before it holding advocates do not fall within the definition of service providers or the client is not a consumer and the accountability of the advocates is to the State Bar Council and Bar Council of India for disciplinary action. The Hon’ble National Commission had reversed the finding and held, client is a consumer and the consumer complaint is maintainable against the lawyer if there was any unfair trade practice or say deficiency in service. However, the Hon’ble Apex Court has ordered, there shall be a stay of the impugned order of the Hon’ble National Commission during the pendency of the appeals.  The said appeals have not yet been decided by the Hon’ble Apex court as was argued and the Hon’ble Apex Court is seized of the matter and the precedent of the Hon’ble National Commission cannot be looked into as it is not in operation as per order of the Hon’ble Supreme Court. We do agree with this contention, there is no guidelines to hold, advocates are service providers and clients are consumers.
7.         The Hon’ble Apex court is already seized of the matter and the judgment and the precedent is still awaited for the guidance of the subordinate courts, including this Forum.  Now while sitting as a District Forum, we are afraid to make any such interpretation of client being a consumer and OP service provider and consumer complaint is maintainable against them. 
8.         Perusal of the record further shows vide order dated 29.11.2017, application moved to get the consumer complaint adjourned sine die was rejected by this Forum, therefore, this order has become final, having not been challenged before the revisional authority.  Hence, a necessity has arisen to dispose of this consumer complaint on merits.
9.         Assuming that the client is a consumer, in that situation, it has to be established, there was any deficiency or negligence in service on the part of the lawyer, therefore, the consumer is to be compensated for the loss caused.  The writ petition was dismissed for want of prosecution i.e. to say non appearance.
10.         It is also admitted case, in routine many matters are dismissed in default, but, there is a remedy under the Code of Civil Procedure to get it restored if a good cause is shown.  In the present case, OP had also moved an application for restoration and without revoking the Power of Attorney executed by the complainant in his favour, another counsel had been engaged by the complainant and the matter for restoration has already been moved before the Hon’ble High Court. This itself show, if there was any default, appropriate remedy for restoration had been resorted to by the complainant as well as the OP.  Since the matter is sub judice before the Hon’ble Supreme Court and Hon’ble High Court, it cannot be commented upon, there was any imperfection, shortcoming or deficiency in service on the part of the OP, a practising advocate.  Nevertheless, it is not the case, remedy of restoration was not advised or resorted to by the OP which is a curative remedy for a human error.  Thus, since the matter is sub judice before the Hon’ble Court qua the restoration, we are unable to hold, there was any deficiency in service on the part of the OP.
11.         A photocopy of Vakalatnama, which was executed by the complainant in favour of the OP advocate, has been placed on record.  We shall refer to the relevant portion of the recitals of Vakalatnama executed by Sh. Kuldeep Singh, complainant on 12.5.2014 in favor of Sh. Sham Lal Bhardwaj, OP and the same are reproduced as under :-

“AND I/We hereby agrees not to hold the Advocate or his substitute responsible for the result of the said case in consequence of his absence from the court when the said case is called on for hearing.”

12.         There is no challenge made in the consumer complaint that the Vakalatnama was executed by the complainant under any undue influence of the OP in relationship of a client and lawyer. Such allegations have not been levelled in the pleadings by the complainant and the own document executed by the complainant in favour of OP shows, complainant had agreed that advocate or his substitute shall not be responsible in consequence of his absence from the court. If it is the scenario, complainant is estopped to file the present consumer complaint against the OP, a practising advocate particularly so when there are no allegations, under pressure complainant was made to sign the Vakalatnama which is one sided in favour of the advocate.  On this score also, it cannot be held, there was any deficiency in service on the part of the OP.
13.         It is true, without the previous Vakalatnama being withdrawn another counsel could not have been engaged, but, this is not a material or issue in the present case before this Forum for the simple reason, we are to see and scrutinize the record only for the purpose of complainant being a consumer and there was any deficiency in service on the part of the OP. 
14.         During the course of arguments, it was also argued orally that the complainant had filed a complaint for disciplinary action against the OP advocate before the Bar Council of Punjab and Haryana for the negligence or say misconduct on the part of the OP. Therefore, the complainant had availed the remedy and if any negligence or say misconduct was done by the OP, Bar Council is already seized of the matter and can punish the advocate under the relevant Advocates Act.  The dismissal or say observation by this Forum for the disposal of the present consumer complaint will not have any effect on the complaint pending, if any, of disciplinary action against the OP before the Bar Council.  We have made the observations confining to the disposal of the present consumer complaint and not for negligence, misconduct or imposition of penalty, if any, for lapses on the part of the advocate who is answerable under the Advocates Act before the Bar Council and the disciplinary committee formed by it.   
15.         In view of the above discussion, we do not find any merit in the present consumer complaint.  Accordingly, the same is hereby dismissed, leaving the parties to bear their own costs. 
16.         The certified copies of this order be sent to the parties free of charge. The file be consigned.

	Sd/-	Sd/-	Sd/-
28/11/2018	[Suresh Kumar Sardana]	[Surjeet Kaur]	[Rattan Singh Thakur]
hg	Member	Member	President