State Consumer Disputes Redressal Commission
K.L. Sharma vs Rajinder Lumba, Advocate on 26 July, 2012
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH
First Appeal No. 600 of 2008
Date of institution : 17.6.2008
Date of Decision : 26.7.2012
K.L. Sharma son of Sh. Munshi Ram, aged 52 years, Addl. SE Hakima Gate
Division, City Circle, PSEB, Amritsar (now Superintending Engineer City Circle).
....Appellant.
Versus
Rajinder Lumba, Advocate, Chamber No. 54, District Court Complex, Amritsar
and resident of H. No. 63-A, Rani Ka Bagh, Amritsar.
...Respondent.
First Appeal against the order dated 21.4.2008 of
the District Consumer Disputes Redressal Forum,
Amritsar.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Piare Lal Garg, Member.
Present:-
For the appellant : Sh. B.S. Taunque, Advocate
For the respondent : Sh. Jasmandeep, Advocate
INDERJIT KAUSHIK, PRESIDING MEMBER:
Appellant-complainant(hereinafter called 'the appellant') has filed this appeal against the impugned order dated 21.4.2008 passed by the District Consumer Disputes Redressal Forum, Amritsar(hereinafter called, 'the District Forum') pleading that he is Addl. Senior Engineer in Punjab State Electricity Board and is posted at Hakima Gate Division, Amritsar City Circle, Amritsar.
2. One Gursharanjit Singh s/o Kartar Singh filed a complaint under Section 452, 506, 34 IPC against one Daljit Singh, Junior Engineer, Punjab State Electricity Board, which is pending in the Court of J.M.I.C., Amritsar. In that complaint, Baljit Singh was summoned and Sh. Gursharanjit Singh moved an application under Section 319 Cr. P.C. for summoning the appellant as accused and the said application was allowed by the Court vide order dated 5.3.2007 and the appellant was also summoned to face the trial.
First Appeal No. 600 of 2008 2
3. The appellant engaged the services of respondent Sh. Rajinder Lumba, Advocate of Amritsar and paid Rs. 10,000/- to him as professional fee, Rs. 1,000/- as Clerk fee and Rs. 1,000/- as miscellaneous expenses for conducting the case. After receiving the said amount in advance, the respondent moved bail application under Section 438 Cr. P.C. for the grant of anticipatory bail to the appellant in the Court of Ld. Addl. Sessions Judge, Amritsar and the Court vide order dated 6.8.2007 directed the appellant to furnish his bail bonds before the Trial Court within a period of 15 days from its order. The respondent did not convey the said orders to the appellant although the appellant remained in touch with the respondent vide telephone as well as through personal visit to the Chamber of the respondent as well as to his residence. The respondent mis- conveyed to the applicant that his application for interim bail is listed for hearing on 31.8.2007 and on 31.8.2007 the respondent informed the appellant that the Court has allowed the interim bail and the appellant has to appear before the Trial Court for furnishing bail bonds upto 14.9.2007 i.e. the next date fixed for hearing.
4. On 5.9.2007, the appellant went to the Chamber of the respondent alongwith one surety, namely, Ramesh Kundra for furnishing the surety bond after obtaining the prior appointment but the respondent was not available in the Chamber. The appellant waited from 12.00 noon till 5.00 p.m. but the respondent did not turn up. At about 5.00 p.m. the Assistant of the respondent informed the appellant to come on next day as the respondent was busy in the Court at Tarn Taran. On next day i.e. 6.9.2007, the appellant again visited the office of the respondent twice and the respondent advised the appellant to wait till the next date of hearing i.e. 14.9.2007 with an assurance that he will get the appellant regular bail on that day. On 14.9.2007, the respondent informed the appellant that his bail application has been transferred to another Judge due to the transfer of that Judge and the same shall be taken up on 15.9.2007. On 15.9.2007, neither the respondent nor his assistant was available and when the appellant contacted them on telephone a message of "switch off" was received. First Appeal No. 600 of 2008 3
5. On personal inquiry from the Court of Sh. Karnail Singh, Addl. Sessions Judge, Amritsar, the appellant came to know that his bail application has been dismissed due to non-furnishing of the bail bonds as ordered vide order dated 6.8.2007 and due to non-appearance of the respondent before the said Court. In its order dated 15.9.2007, Court mentioned as follows:-
"Case called several times but none appeared for the applicant."
6. The appellant was shocked to know about the irresponsible behaviour of the respondent. Non-passing of the proper information about the orders passed by the Addl. Sessions Judge dated 6.8.2007 and non-appearance of the respondent before the Court of Addl. Sessions Judge, Amritsar on 15.9.2007 resulted into dismissal of the interim bail application, which was allowed on 6.8.2007.
7. After knowing about the order passed by the said Court, the appellant had no other option except to rush immediately to the Hon'ble High Court where he filed another bail application, which was allowed. He has to engage another counsel for his bail. Due to negligence and deficiency in service on the part of the respondent, the appellant suffered a loss of RS. 20,000/- and also faced expenses of more than Rs. 15,000/- for traveling. The appellant also suffered mental tension, agony and harassment. It was prayed that the respondent be directed to pay Rs. 50,000/- as compensation.
8. In the reply filed on behalf of the respondent, preliminary objections were taken that the complaint is not maintainable in the present form and the respondent is not guilty of negligence. The appellant has suppressed the material facts and has no locus-standi to file the complaint. The appellant has not approached the District Forum with clean hands. On merits, filing of the complaint, summoning of the appellant by the Court was admitted. It was also admitted that the appellant engaged the services of the respondent and Rs. 10,000/- was settled as fee but the appellant paid only Rs. 5,000/- and promised to pay the rest of the amount on getting the interim relief. Filing of the bail application and passing of the order dated 6.8.2007 was admitted. The Court directed the appellant to furnish the bail bond before the Trial Court within a First Appeal No. 600 of 2008 4 period of 15 days from its order. It was denied that the said order was not conveyed. Rather when the order was conveyed to the appellant then the appellant started compelling the respondent to arrange for the paid surety from the Court Complex but the respondent refused to do so by saying that the respondent was to get orders from the Court and he was not to arrange the surety for the appellant. The appellant got angry and after exchange of hot words left the office of the respondent while saying in rash and filthy language that he is officer of P.S.E.B. and he will see the respondent and did not come back nor communicated with the respondent regarding his bail application. The respondent was having no instructions to appear on 14.9.2007 so the respondent under the legal ethics did not appear in the case of the appellant and the appellant did not bother to pay the balance fee as promised. The respondent is not guilty of negligence and deficiency in service. The professional services were given to the appellant by filing the bail application and getting the orders from the Court. Other allegations were denied and dismissal of the complaint was prayed for.
9. Parties adduced evidence in support of their respective versions by way of affidavits and documents.
10. Learned District Forum observed that where the complicated questions of facts and law are involved "Consumer Fora should not give its verdict in such a dispute." In the present case, complicated question of facts are clearly involved. The District Forum disposed of the complaint by relegating the parties to civil remedy as extremely complicated questions of facts and law are involved in the present case.
11. Aggrieved by the impugned order dated 24.4.2008, the appellant has filed this appeal.
12. We have heard the learned counsel for the appellant and have perused the written arguments filed on behalf of the respondent and have gone through the file and documents placed on record.
13. Counsel for the appellant contended that the District Forum ought to have decided the complaint on merits. The facts and evidence clearly proved First Appeal No. 600 of 2008 5 that the appellant engaged the respondent as his counsel for moving an application for bail under Section 438 Cr. P.C. and paid the requisite fee. The respondent moved the application and obtained the interim bail order but thereafter never conveyed the same to the appellant and the appellant failed to comply with the terms and conditions of the interim bail order. The respondent also did not appear on the date fixed. The bail application of the appellant was dismissed in default by the Court of the Addl. Sessions Judge and the appellant has to move to the Hon'ble Court and he obtained the bail order from the Hon'ble High Court by spending Rs. 20,000/- which was paid as fee to the counsel, Rs. 15,000/- spent for coming to Chandigarh and miscellaneous expenses. The respondent has failed to disprove the allegations and the act and conduct of the respondent amounts to deficiency in service as well as gross negligence on the part of the counsel, who after receiving the professional fee did not conduct himself as a good professional. The District Forum has wrongly observed that the complicated questions of facts and law are involved whereas the evidence and material on file shows that the complaint could be decided on merits. It has been argued that the appeal may be accepted and the case be remanded to the District Forum for fresh decision of the complaint, on merits.
14. In the written arguments filed on behalf of the respondent, the pleadings of the written reply were repeated and interalia it was further submitted that the appellant was informed about the court order passed on 06.08.2007 and he was to furnish bail bonds till 14.09.2007. The appellant visited the respondent on 05.09.2007 and 06.09.2007 as per his allegations and he has further stated that he was asked to come on 15.09.2007 and on that day, the bail application was dismissed. It was admitted that the respondent received Rs.5,000/- as fee and the remaining amount was to be paid after getting the interim order. It was further submitted that the appellant started compelling and pressurizing the respondent to arrange for the paid sureties, but the respondent refused to do so, as it was not his duty and the appellant threatened and used abusive language and the appellant did not give any further instructions. No reasons have been given for not informing him the order dated 06.08.2007. No benefit accrued to the First Appeal No. 600 of 2008 6 respondent in not informing the order, rather a favourable order was secured and the respondent was to get the remaining fee also. The affidavit filed by Ramesh Kundra is full of contradictions. The findings recorded by the District Forum are correct. The respondent had no opportunity to cross examine the said Ramesh Kundra and the present complaint as well as the appeal is just to harass the respondent and prayed that the appeal may kindly be dismissed.
15. We have considered the oral submissions advanced on behalf of the appellant as well as written submissions filed on behalf of the respondent and have carefully examined the entire record placed on the file.
16. Admittedly, the appellant approached the respondent for moving an application for grant of anticipatory bail and respondent after receiving Rs.5,000/- moved application and interim bail was allowed by the Additional Sessions Judge vide order dated 06.08.2007. The contention of the appellant is that the respondent did not inform him about the passing of the order and he was ready to furnish the surety and came present with one Ramesh Kundra, but the respondent was not available and the application for bail was dismissed in default and then the appellant has to move the Hon'ble High Court and spent lot of money and he was allowed bail by the Hon'ble High Court.
17. Both the parties have led evidence in support of their contentions and if the respondent wants to cross-examine Sh. Ramesh Kundra, surety, he should have moved the application before the District Forum for doing so and even still it is open to respondent to move application for cross-examination of said Ramesh Kundra, surety. The District Forum instead of deciding the complaint on merits, thought it as a case of complicated facts and relegated the parties to the civil court, which was not required. The law on this point has undergone a sea change and now, it is settled that the Presiding Members of the District Forum and the State Commissions are appointed, having judicial background and they are competent enough to decide the matters and every case is not required to be sent to the civil court.
First Appeal No. 600 of 2008 7
18. Keeping into view all these facts and circumstances as well as the settled proposition of law, the order passed by the District Forum cannot be sustained and is liable to be set aside.
19. Accordingly, the appeal filed by the appellant is accepted and the impugned order dated 21.04.2008 under appeal passed by the District Forum is set aside. The case is remanded back to the District Forum for a fresh decision. The District Forum should afford opportunity to both the parties to lead evidence and, if so required, even to allow the cross examination and thereafter, shall decide the complaint on merits. The District Forum shall also procure the presence of the parties.
20. Record of the District Forum along with copy of the order be sent to the District Forum forthwith.
21. The arguments in this appeal were heard on 18.07.2012 and the order was reserved. Now the order be communicated to the parties.
22. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik)
Presiding Member
July 26, 2012. (Piare Lal Garg)
As/Gurmeet S. Member