BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD : THIRUVANANTHAPURAM PRESENT: SHRI. G. SIVAPRASAD : PRESIDENT SMT. BEENA KUMARI .A : MEMBER SMT. S.K. SREELA : MEMBER
C.C.No. 80/2006 Filed on 14/3/2006 Dated: 16/04/2010 Complainant: B. Balachandran Nair, Advocate, T.C 29/1257 (2) Kozhiyottu Lane, Palkulangara – P.O., Thiruvananthapuram. Present Address: B. Balachandran Nair, Advocate, T.C.76/501, Nikhil Nivas, Kilikunnam Lane, Anayara – P.O., Thiruvananthapuram – 29. (Party in person)
Opposite party: The Secretary, Kerala Advocates Welfare Fund Trustee Committee, Bar Council Bhavan, High Court Complex, Ernakulam, Kochi – 31. (By Adv. J. Harikumar) This O.P having been heard on 30..11..2009, the Forum on 16..04..2010 delivered the following: ORDER
SHRI.G. SIVAPRASAD, PRESIDENT: The facts leading to the filing of the complaint are that, complainant retired as District Treasury Officer on 31/10/2000 and enrolled as an Advocate on 17/12/2000, that complainant filed an application before the Kerala Advocates' Welfare Fund Trustee Committee for admission to the Welfare Fund on 20/12/2001, on payment of prescribed fee of Rs.300/-, that on receipt of the said application complainant was provisionally admitted to the membership of the Fund vide letter No. KAW/ADM/2002 dated 29/5/2002 of the opposite party and that on 23/6/2004, complainant was informed by the opposite party vide letter KAW/4293/04 dated 23/6/04 that his application for admission to the membership of the Welfare Fund was rejected for the reasons stated in the accompanying order of the Chairman of the Trust Committee sent along with the said letter. It is submitted by the complainant that as per Section 9(2) of the Kerala Advocates Welfare Fund Act, the Trust Committee is to receive the application for admission or readmission to the fund and disposes of such application within ninety days from the date of receipt of it, that opposite party rejected his application after a lapse of 2 ½ years, that complainant alleges deficiency in service on the part of the opposite party. Hence this complaint to direct opposite party to pay Rs.3,00,000/- towards compensation along with refund of remitting fee of Rs. 300/- to the complainant.
2. Opposite party filed version contending that complaint is not maintainable either in law or on facts, that complainant is not at all a consumer within the meaning of Consumer Protection Act, that there is no deficiency of service or unfair trade practice as alleged, that complainant has preferred this complaint without disclosing the true state of affairs, that complainant's petition before the Hon'ble Kerala Lok Ayukta by complaint No. 987/2004 was dismissed on 12/8/2004 and the Writ Petition filed by him before the Hon'ble High Court of Kerala in W.P(C) No.17358/2005 was dismissed on 9/6/2005 on the admission stage itself. It is further averred in the version that complainant did not file a proper application on 26/12/2001, that a defect memo dated 29/5/2002 was served on the complainant whereby he was asked to submit his application in the revised proforma, that he was informed therein that he has been provisionally admitted and that the admission to the Welfare Fund can be regularised only on receipt of the revised proforma to find that the complainant has not incurred any disqualification prescribed under Section 15(1a) of the Kerala Advocates Welfare Fund (Amendment) Act, 2001, that complainant submitted application in the proper proforma only on 14/6/2002 and he was informed by the opposite party by letter dated 20/11/2002 that his application is liable to be rejected as he has incurred disqualification under Section 15(1a) of the Advocates Welfare Fund (Amendment) Act, 2001 and he was asked to appear on 8/12/2002 at the Office of the opposite party for a personal hearing, that after due consideration and after affording opportunities to the complainant, the application for enrollment to the Welfare Fund submitted by the complainant was disposed on 23/6/2004, that there is no delay as alleged by the complainant. It was also mentioned in the letter dated 23/6/2004 of the opposite party that the amount of Rs. 300/- remitted by him would be refunded on his written request. Hence opposite party prayed for dismissal of the complaint.
The points that arise for consideration are:
Whether there is deficiency in service on the part of the opposite party? Whether complainant is entitled to compensation, If so, at what amount? Whether the complainant is entitled to get cost?
In support of the complaint, complainant has filed an affidavit of himself as PW1 in lieu of examination in chief and has marked Exts. P1 to P16. Complainant has been cross examined by opposite party. In rebuttal, opposite party has filed affidavit as DW1 and has marked Exts. D1 to D10. Opposite party has been cross examined by the complainant.
4. Points (i) to (iii): Admittedly, complainant retired as District Treasury Officer on 31/10/2000 and enrolled as an advocate on 17/12/2000. It has been the case of the complainant that complainant filed an application before the Kerala Advocates' Welfare Fund Trustee Committee for admission to the Welfare Fund on 20/12/2001, on payment of prescribed fee of Rs.300/- by way of DD drawn on the Dhanalekshmi Bank in favour of the Secretary, Trust Committee, that on receipt of the said application complainant was provisionally admitted to the membership of the Fund vide letter No. KAW/ADM/2002 dated 29/5/2002 of the opposite party and that on 23/6/2004, complainant was informed by the opposite party vide letter KAW/4293/04 dated 23/6/04 that his application for admission to the membership of the Welfare Fund was rejected for the reasons stated in the accompanying order of the Chairman of the Trust Committee sent along with the aforesaid letter. It is the very case of the complainant that as per Section 9(2) of the Kerala Advocates Welfare Fund Act, the Trust Committee is to receive the application for admission or readmission to the fund and dispose of such application within ninety days from the date of receipt of it. In this case, it is contended that the opposite party has disposed the application after a lapse of 2 ½ years. Opposite party resisted the complainant by submitting that complainant is not at all a consumer within the meaning of the Consumer Protection Act, that complainant has preferred the complaint without disclosing the true state of affairs, that complainant had already preferred a complaint before the Kerala Lok Ayukta by complaint No. 987/04 which was dismissed on 12/8/04 and that he had also preferred a Writ petition before the Hon'ble High Court of Kerala in WP(c) No.17358 of 2005 which was also dismissed on 9/6/2005. Ext. D1 is the copy of the order dated 12/8/2004 of Kerala Lok Ayukta in complaint No.987/04. Ext. D2 is the order dated 9/6/2005 of the Hon'ble High Court of Kerala in WP(c) 17358 of 2005. On a perusal of Ext. D1 it is seen that complainant had challenged the order of the opposite party rejecting his application before the Lok Ayukta. The contention of the complainant before the Lok Ayukta was that he is entitled to be admitted to the Welfare Fund, notwithstanding the amendment of Section 15(1) of the Act. Ext. D9 is the copy of the order of the Trust Committee. As per Ext. D9, the Trust Committee rejected his application for the reason stated thus: “Since the applicant's application for admission to the fund is after 23/11/2001, that is, the date of coming into force of section 15 (1A) of the K.A.W.F Act 1980, and the applicant also admitted during the personal hearing that he had received the retirement benefits while retiring from the Kerala Treasuries Department, his case falls under section 15(1A) of the K.A.W.F Act as amended by Act 8 of 2001. Therefore, he cannot be admitted as a member of the Fund. Hence, his application is liable to be rejected and we do so”. It is true that the amendment of the Act came into force on 23/11/2001 and hence it is prospective in operation. The Lok Ayukta in its order has observed thus: “Advocates' Welfare Fund is available to be disbursed when the advocate retires. If the advocate has received or was eligible to receive retiral benefits from the Government or public or private Sector undertakings and the Act declares that he will not be entitled to the benefits of the Welfare Fund, any person who falls in this category is denied the benefits of the Welfare Fund. This applies prospectively to persons who belong to this restricted category. If any has received the fund prior to the amendment, that is not affected by the amendment. That seems to be the purport of the amendment. This seems to be a reasonable clarification, because the amendment takes note of two classes of advocates, 1) those who enrolled, without having any anterior benefits of retirement, and 2) those who enrolled after being eligible or having received retiral benefits from Government or Public and Private Undertakings. Thus there is a rational clarification. These two categories belong to two different classes. The Advocates' Welfare Fund is mainly to be utilized for advocates who retire from the profession, when they are no longer able to practice the profession. That is the first time he gets pension. The amended section 15(1A) excludes the receipt of retiral benefits by the same person from two different sources and the statute insists that this class of advocates should be content with the retiral benefits already earned".
5. The complainant also contended before the Lok Ayukta that there was delay in disposal of his application for admission to Welfare Fund. According to him, if the said application was processed prior to the amendment he would have got the benefits and he preferred the contention based on Section 9(2) of the Act. Section 9(2) of the Act reads thus: In the administration of the Fund, the Trust Committee shall subject to the Provision of this Act and the rules made thereunder: "receive application for admission or readmission to the fund and dispose of such applications within ninety days from the date of receipt thereof". It is pertinent to note that Section 9(2) itself expressly states that the rules are subject to the provisions of the Act, this subject to the amendment of the Act also. The receipt of the application for admission to the Welfare Fund and the delay in issuing orders have no bearing on the right of the petitioner under the Act. It is further to be noted that complainant has brought the same issue to Hon'ble High Court of Kerala, by WP(c) No.17358 of 2005. Hon'ble High Court vide its order by Ext. D2 has observed that "Though the petitioner was eligible for membership, when he enrolled, he waited and finally submitted the application only when persons like him were made ineligible. I find nothing illegal when the decision of the Trust Committee or the Appellate Authority. Accordingly the writ petition fails and it is dismissed".
6. In view of the foregoing discussions, and in the light of the decisions of the Hon'ble High Court of Kerala in WP(c) No.17358/05, we find the decision of the Trust Committee is legal and as regards delay in disposal of his application, it is to be highlighted that Section 9(2) itself expressly states that the rules are subject to the provisions of the Act, thus subject to the amendment of the Act also. As such delay in disposal of the application has no bearing on the right of the complainant under the Act. Thus we do not see anything to attribute deficiency on the part of opposite party. Deficiency in service not proved. Complaint has no substance at all which deserves to be dismissed.
In the result, complaint is dismissed. Parties are directed to bear and suffer their costs.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 16th day of April, 2010.
G. SIVAPRASAD PRESIDENT.
BEENA KUMARI. A : MEMBER
S.K. SREELA : MEMBER
ad. C.C.No.80/2006 APPENDIX I. Complainant's witness: PW1 : B. Balachandran Nair II.Complainant's documents: P1 : Photocopy of Certificate of Enrollment P2 : " receipt No.A-462 P3 : " Kerala Advocates' Welfare Fund Act P4 : " Application for admission to the Welfare Fund. P5 : " D.D P6 : " Postal card P7 : " Kerala Gazette P8 : " letter dated 29/05/2002 P9 : " registered post P10 : " A/D card
III. Opposite party's witness: DW1 : Abdul Azeez IV. Opposite party's documents: D1 : Photocopy of Order of Kerala Lok Ayukta D2 : " judgment of the High Court of Kerala D3 : " application for admission to the Welfare Fund D4 : " Proforma D5 : " letter dated 14/6/02 D6 : " Kerala Advocates Welfare Fund Trustee Committee Proforma D7 : " letter dated 29/5/2002 D8 : " letter dated 20/11/2002 D9 : " letter to the complainant from the opposite party D10 : " letter dated 23/12/2005
V. Court witness : Nil
PRESIDENT
| | [HONABLE MR. JUSTICE President] President[HONORABLE MR. Sri G. Sivaprasad] PRESIDENT[ Smt. Beena Kumari. A] Member | | 
