By G. Yadunadhan, President:<br /> <br /> The case of the complainant is that he was working in the Kendriya Vidyalaya as a Post Graduate Teacher in Physics since 10.10.1998 at Calicut and on November 1992 he was illegally terminated with effect from 10.10.1991 and on appeal Hon,ble Minister for HRD and Chairman of the Kendriya Vidyalaya set aside the order and ordered an enquiry against the illegal termination. But Kendriya Vidyalaya Sangthan authorities refused to regularize and take him back. Being aggrieved by the termination of service he approached the opposite party for filing suit against Kendriya Vidyalaya. As per the instruction of the complainant, opposite party filed indigent OP 13/98 before the Subordinate Judges for 3rd additional Sub Judge, Calicut. The said OP was granted and complainant paid fee as well as other expenses to the opposite party. During the pendency of the suit the petitioner had to move out of station in search of a job and as per the advice of the opposite party, Power of Attorney was given to his wife for doing the essential needful for the above proceedings. It is the case of the complainant that this fact is well known to the opposite party and Power of Attorney was brought to the notice of the opposite party and given specific instruction to the opposite party to contact the Power of Attorney holder and gave address and telephone number of his wife who is the Power of Attorney holder. On 28.6.2001 the suit was dismissed due to the pure negligence and improper attendance for not taking steps on technical and flimsy ground without really going into the merit of the case and logically assessing the truths without studying, analyzing the evidences supporting documents, circumstances etc. Opposite party gave no satisfactory explanation for the above dismissal, complainant alleges that no proper service from opposite party, he suspect some foul play to get him defeated, truths suppressed and justice denied for known reasons. He lost life, reputation and expectation, resulted in the dismissal of the suit not on his fault but on not receiving expected service and timely response what is expected from opposite party and claims a compensation of Rs.20 lakhs. Complainant alleges deficiency of service against the opposite party. Complainant limits the claim against the damages to Rs.10 lakhs and Rs.10 lakhs towards mental agony.<br /> <br /> Opposite party filed written version and denies several averments and allegations made in the petition. According to the opposite party the complaint is not maintainable, the reasons alleged in the complaint are neither true nor sufficient to grant a relief. The complaint is not framed, verified or presented according to law. The complaint necessarily suffers not only intrinsic legal defects but also infested with false factual assertions, misjoinder of cause of action and malafide joinder of causes. Opposite party admits that the petitioner approached the opposite party along with Sri. M.T. Balan, a Judicial Officer in Kerala State with request for legal aid and advice for the case of removal from the Kendriya Vidyalaya on accusation of molestation of a girl student by name Lalitha Praveen for whom the complainant was taking home tuition. Sri. M.T. Balan recommended to take up the case and as a good friend or Sri. Balan, the opposite party accepted the case. Even the preparation of the plaint was done at Sri. M.T. Balan’s residence. Suit was instituted originally as Indigent OP 13/98 and later by legal efforts got taken on file as O.S.48/2000. Opposite party and his juniors and staff have been sincerely and earnestly doing their work in that connection. Right from the beginning the complainant as plaintiff in the suit handled by the opposite party and his office was received curious and suspicious conduct towards the other staff of the opposite party. But thinking of Sri.M.T. Balan and the complainant’s own oft repeated saying that “he is a cat once fallen into hot water frightened of even cold water thereafter”. The opposite party and his colleagues in office and the court staff were taking best care tolerating the irksome conduct of the complainant throughout. During the pendency of suit complainant left abroad without disclosing the same and advised to authorize someone of his confidence as Power of Attorney agent. As per that, Cicily Sam, complainant’s wife was appointed as Power of Attorney. O.S.48/2000 happened to be dismissed for default. Under his instruction opposite party filed IA 5061/01 to condone delay and IA 5062/01 for restoration of the suit. Both considered by court of law and dismissed both petition. Thereafter opposite party prepared and filed regular first appeal and later taken back the file from the opposite party and obtained consent endorsement of Vakalath in favour of another counsel of his own choice. Opposite party denies the deficiency of service as alleged.<br /> <br /> Points for consideration: (1) Whether the complaint is maintainable? (2) Whether there is any misjoinder? (3) Whether there is any deficiency of service as alleged? (4) What is the relief and cost?<br /> <br /> It is admitted by opposite party that he accepted the brief of the complaint and conducted the case. The service rendered by advocates are coming under the purview of the Consumer Protection Act, hence this Forum finds that the complaint is maintainable.<br /> <br /> The next point is to be considered is whether there is any misjoinder of parties? Nowhere it is brought to the notice of this Forum who is to be joined as party and his connection to the case under consideration. Hence there is no merit in that contention. Now the remaining question is whether there is any deficiency on the part of the opposite party? Ext. A1 and A2 produced on behalf of the complainant. Ext. B1 and B2 produced on behalf of the opposite party. On perusal of Ext. A1 document it will be seen that the plaintiff was called and found arson and no substitute service was effected and batta also paid for affixture. Even though the suit was dismissed further steps are taken by both parties to rectify the mistake, this Forum cannot find any deficiency of service to that extent. On perusal of Ext. B1 document, it is clear that the conduct of the complainant and his wife who is the Power of Attorney of the complainant are not interested in the subject of the suit and their attempt was to keep it alive the subject under one pretext or another only to harass the respondents. This Forum finds nothing to interfere in the clear cut finding in the considered order passed by the Subordinate judge 3rd Additional Sub Judge, Kozhikode. Even then this defects also occurred through Ext. B2 document. It is the first appeal memorandum before District Court at Kozhikode. The same is prepared by opposite party. Thereafter what happened in O.S.48/2000, no satisfactory explanation or documentary proof were produced to show that the complainant pursuing with the suit. Whereas it is the case of the opposite party that the complainant obtained no objection from the opposite party. Complainant has no contra evidence to this effect. This Forum is not in a position to find that all legal remedies are exhausted and the petitioner sustained huge loss, and he has stopped all relationship with the opposite party and he could have continued with the litigation, if that is so this Forum would have been justified in finding that there would be deficiency of service. The lethargic attitude of the petitioner is seen before this Forum what prevents petitioner in examining his wife who is the Power of Attorney holder before this Forum. Ample opportunity and sufficient time were granted to the petitioner. It draws an adverse inference against the petitioner; Power of Attorney holder is only the person who can speak about deficiency of service in the absence of the complainant. Non-examination of the Power of Attorney holder is factual to complainant’s case. In such circumstances, this Forum finds there is no deficiency of service on the part of the opposite party.<br /> <br /> In the above circumstances, we are of the opinion that the complaint is liable to be dismissed with no cost.<br /> <br /> Pronounced in open Court this the 18th day of March 2008.<br /> <br /> Sd/- Sd/- Sd/-<br /> PRESIDENT MEMBER MEMBER<br /> <br /> <br /> APPENDIX<br /> <br /> Documents exhibited for the Complainant:<br /> <br /> A1 Photocopy of the Judgement of OS No.48/2000.<br /> A2 Photocopy of notice published in the newspaper.<br /> <br /> Documents exhibited for the Opposite party:<br /> <br /> B1 Photocopy of I.A.5061/01 and 5062/01 filed in O.S.48/2000.<br /> B2 Photocopy of First Appeal from Order.<br /> <br /> Witness examined for the Complainant:<br /> <br /> PW1 Arokya Samy, Complainant.<br /> <br /> Witness examined for the Opposite party:<br /> <br /> None.<br /> <br /> Sd/-President<br /> <br /> -/True copy/-<br /> <br /> (Forwarded/By Order)<br /> <br /> <br /> <br /> Senior Superintendent<br />