State Consumer Disputes Redressal Commission
Ex. Head Constable Chamel Singh. vs Sh. Kuldeep Bhatia, Advocate. on 30 July, 2021
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 361/2019
Date of Presentation: 30.11.2019
Order reserved on : 16.07.2021
Date of Order : 30.07.2021
......
Ex. Head Constable Chamel Singh, S/o Shri Uttam Singh, P.O.
Kukher, Tehsil Nurpur, District Kangra (HP-176211
...... Appellant/Complainant.
Versus
1. Advocate Kuldeep Bhatia, Premises Hon'ble District & Sessions
Court, Chakkar, Shimla (HP)-171005.
......Respondent No.1/ Opposite party.
2. ADIG (Welfare), Dtc. General BSF, Block No.10, CGO
Complex Lodhi Road, New Delhi-110003
3. National Insurance Company Ltd. Divisional Office, 12th
Residency Road, Jodhpur (Raj.)-342001
4. The Manager, Punjab National Bank, Brahmta Niwas, near
SJVN New Shimla,(HP)- 171006
5. Shri Dheeraj Ahluwalia Account No.450000010006062, C/o
Punjab National Bank, Brahmta Niwas, near SJVN New
Shimla,(HP)- 171006
......Respondents No.2 to 5
(Respondents No.2 to 5 already deleted vide order dated 06.12.2019)
Coram
Hon'ble Ms. Sunita Sharma, Presiding Member
Hon'ble Mr. R.K. Verma, Judicial Member
Whether approved for reporting?1
For Appellant : None.
For Respondent No.1 : Mr.Vaibhav Sharma vice Mr.Ashwani
Kaundal, Advocate.
For Respondent No.2 to 5 : Already deleted vide order dated
06.12.2019.
1
Whether reporters of the local papers may be allowed to see the order?
Ex. Head Constable Chamel Singh Vs. Kuldeep Bhatia, Advocate & Ors.
F.A. No.361/2019
MR.R.K.Verma, (Judicial Member) :
O R D E R :-
1. This appeal has been preferred by the appellant/complainant under section 17 of the Consumer Protection Act,1986 (hereinafter called as the Act) against the order dated 31.10.2019 passed by District consumer Disputes Redressal Forum, Kangra at Dharamshala, whereby his complaint No.39/2019 was dismissed.
2. It would be apposite to mention here that the parties will be referred, as have been arrayed before the District Forum.
3. Brief facts, necessary for disposal of the instant appeal, are that the complainant is a former Border Security Force personnel. He was discharged from the said force on medical grounds on 22.07.2009. His grievance against his Department was that while releasing his retiral benefits his Department did not pay interest amounting to Rs.3 lacs on the compensation amount payable under Prahari Insurance Scheme. In order to claim this amount, he contacted the opposite party in the month of April, 2012 for filing appropriate petition before the Central Administrative Tribunal, Chandigarh. The opposite party demanded a sum of Rs.20,000/- as fee for this purpose which the complainant paid him in cash. Thereafter, the opposite party again demanded a sum of Rs.20,000/- and asked him to deposit the 2 Ex. Head Constable Chamel Singh Vs. Kuldeep Bhatia, Advocate & Ors. F.A. No.361/2019 same into the account of Sh.Dhiraj Ahluwalia, Advocate maintained by him in Punjab National Bank. The complainant accordingly transferred a sum of Rs.20,000/- into the account of the said Advocate from his account maintained in PNB, Jassur on 21.09.2012. In the meanwhile the complainant asked the opposite party to send him the copy of the petition filed by him before the Central Administrative Tribunal at Chandigarh. Lateron, he also visited the Chandigarh and on inquiry in the office of the tribunal, he came to know that no petition on his behalf had been filed in the said Tribunal. On being asked in this behalf, the opposite party told him that he had already filed the petition in the tribunal and thereafter, he tried to put off the matter on one or the other pretext. Thereafter, the complainant visited Shimla several times to meet the opposite party, but he was not found in his office. Telephonic calls made by him to the opposite party were also not attended by him. Having failed to contact the opposite party, the complainant made complaint against him to the Chairman, Bar Council, Himachal Pradesh on 02.08.2016. On his complaint, the Bar Council had issued notice to the opposite party, but he failed to provide any satisfactory reply, but pressurized him to withdraw his complaint by assuring him that he would get relief for him from the Hon'ble High Court. In order to show his bonafide, the opposite party filed writ petition bearing 3 Ex. Head Constable Chamel Singh Vs. Kuldeep Bhatia, Advocate & Ors. F.A. No.361/2019 No.1386/2017 in the Hon'ble High Court of Himachal Pradesh on 23.06.2017, which was disposed of by the Hon'ble High Court on 04.07.2017. The opposite party sent the copy of the order to the department of the complainant and on 11.01.2018 he was informed by his department that all necessary dues payable to him had already been paid to him. After rejection of his claim by his department, he made efforts to telephonically contact the opposite party, but the latter did not attend to his call. Thereafter, he contacted Sh.Ashwani Kumar, Advocate, the colleague of the opposite party, who advised him to visit Shimla and assured him that he would get the matter discussed with the opposite party. Upon this he visited Shimla, but the opposite party failed to take further steps to redress his grievances. Hence, this complaint for rendering him justice.
4. The OP has resisted and contested this complaint by filing his reply in which he has taken up preliminary objections regarding jurisdiction, limitation, cause of action, locus standi of the complainant and suppression of material facts. On merits, he has not disputed that in April, 2012, the complainant had engaged him as his counsel for filing writ petition before Central Administrative Tribunal against his department (BSF) for released of his balance payment of Rs.3.00 Lacs. He has, however, denied that at that time the 4 Ex. Head Constable Chamel Singh Vs. Kuldeep Bhatia, Advocate & Ors. F.A. No.361/2019 complainant had paid him a sum of Rs.20,000/- as fee, but pleaded that the complainant had only paid him a sum of Rs.800/- as drafting expenses and promised him to pay the legal fee lateron. He has also denied that lateron the complainant had transferred a sum of Rs.20,000/- into the account of Sh.Dhiraj Ahluwalia, Advocate at his instance. According to him, after going through the case of the complainant, he had demanded the copy of the agreement or memo of understanding between the BSF and the National Insurance Company in order to properly appreciate the nature of the alleged grievance of the complainant, but he failed to do so. Despite this he had filed writ petition before Central Administrative Tribunal, Chandigarh bench in the presence of the complainant on 15.05.2012, but the registry of the tribunal had apprised the complainant that his case did not fall within the purview and jurisdiction of the Central Administrative Tribunal. However, the complainant insisted that the Central Administrative Tribunal had jurisdiction to entertain his petition as there was some notification which conferred such power upon the said Tribunal. The opposite party claims that on the suggestions of the officials of the registry he too had gone through the relevant provisions of the law and came to the conclusion that the Central Administrative Tribunal did not have jurisdiction to entertain the petition of the complainant. But the complainant did not 5 Ex. Head Constable Chamel Singh Vs. Kuldeep Bhatia, Advocate & Ors. F.A. No.361/2019 pay any heed to his advice and insisted upon him to pursue the matter before Central Administrative Tribunal. Thereafter, he filed writ petition on behalf of the complainant in the Hon'ble High Court of Himachal Pradesh and the same was allowed vide order dated 04.07.2017 whereby direction was issued to the respondents therein to consider and decide representation dated 14.09.2016 of the complainant after providing him opportunity of being heard. The opposite party has further submitted that he had taken all necessary steps to pursue the case of the complainant before the competent forum. He has admitted that the complainant had filed a complaint against him before the Bar Council but stated that the same has been falsely filed by the complainant in order to defame him. He has, therefore, prayed for dismissal of this complaint.
5. The complainant filed rejoinder in which the contents of the reply were denied and the averments contained in the complaint were reiterated.
6. The parties led oral as well as documentary evidence in support of their respective cases.
7. The learned District Forum below after hearing the parties and going through the records dismissed the complaint as aforesaid.
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Ex. Head Constable Chamel Singh Vs. Kuldeep Bhatia, Advocate & Ors. F.A. No.361/2019
8. Feeling aggrieved by the impugned order dated 31.10.2019 passed by the learned District Forum the complainant has filed the instant appeal in which he has reiterated the grounds mentioned in the complaint.
9. The parties have filed written submissions. We have gone through the written submissions made by the parties and also carefully perused the record of the case.
10. The complainant in this case is feeling aggrieved by the professional misconduct of the opposite party who was engaged by him to prosecute his before the Central Administrative Tribunal against his department. Before filing the instant complaint the complainant had filed a complaint against the opposite party before the Bar Council of Himachal Pradesh under the provisions of Advocates Act, 1961 for his professional misconduct. The opposite party has claimed that the said complaint has already been dismissed by the Bar Council. On the other hand the complainant has not placed on record any material to show the outcome of his complaint. In view of this, the version of the opposite party that the complaint filed by the complainant against him was dismissed by the Bar council has to be accepted. In these facts and circumstances we are of the opinion that since the complainant has already unsuccessfully availed a statutory remedy it is not proper for any fora under Consumer 7 Ex. Head Constable Chamel Singh Vs. Kuldeep Bhatia, Advocate & Ors. F.A. No.361/2019 Protection Act to pass any contradictory order. A similar view has been taken by this Commission in two earlier cases titled as Anant Ram Negi vs Nareshwar Chandel, F.A.No.42/2017 decided on 07.11.2017 and J.P.Sharma vs Rangi Ram,F.A.No.107/2017 decided on 31.12.2018 in which complaints of professional misconduct were filed before the Bar council against the Advocates which were dismissed. If the complainant feels aggrieved by the adverse order passed against him by the Bar council, he is at liberty to pursue his remedy before the higher forum under the Advocates Act,1961.
11. Even on merits the complainant has failed to make out a case of professional misconduct or deficiency of service against the opposite party as held by the fora below. Except for his self serving oral testimony there is no other evidence on record to show that the opposite party had falsely told him that he had filed writ petition before the Central Administrative Tribunal, Chandigarh Bench which was pending. The oral testimony of the complainant stands duly controverted and rebutted by the oral testimony of the opposite party who has categorically stated that he had prepared the petition of the complainant and presented the same before the Central Administrative Tribunal, Chandigarh Bench in the presence of the complainant on 15.05.2012, but the registry of the tribunal had apprised the complainant that 8 Ex. Head Constable Chamel Singh Vs. Kuldeep Bhatia, Advocate & Ors. F.A. No.361/2019 his case did not fall within the purview and jurisdiction of the Central Administrative Tribunal. However, the complainant insisted that the Central Administrative Tribunal had jurisdiction to entertain his petition as there was some notification which conferred such power upon the said tribunal. The complainant has not produced any notification showing that the central Administrative Tribunal had jurisdiction to entertain his petition for the relief claimed by him. In these circumstances the version deposed by the opposite party that the OA of the complainant was not entertained by the registry of the Central Administrative Tribunal in the presence of the complainant appears to be more reliable and trust worthy especially keeping in view the fact that the opposite party had subsequently filed writ petition No.1386 of 2017 in the Hon'ble High Court of Himachal Pradesh on behalf of the complainant which was entertained by the Hon'ble court and disposed off vide order dated 04.07.2017 directing the respondents therein to decide the representation dated 14.09.2016 of the complainant after giving him opportunity of being heard. Liberty was also granted to the complainant to approach the court afresh, if need be. Thus, the opposite party by filing writ petition on behalf of the complainant before the Hon'ble High Court of Himachal Pradesh for the relief sought by the complainant had discharged his professional duties for which he was 9 Ex. Head Constable Chamel Singh Vs. Kuldeep Bhatia, Advocate & Ors. F.A. No.361/2019 engaged by the complainant. After disposal of the writ petition, the representation of the complainant was considered and rejected by his department. If the complainant was aggrieved by the rejection of his representation by his department it was his duty to challenge the order of rejection before the appropriate forum, but he did not do so even through liberty was granted to him by the Hon'ble High Court for this purpose. For this inaction on the part of the complainant the opposite party cannot be blamed.
12. The learned District Forum after appreciation of oral as well as documentary evidence on record has returned findings that the complainant has failed to prove that there was any deficiency of service or unfair trade practice on the part of the opposite party. In the facts and circumstances of the present case, no fault can be found in the findings returned by the learned District Forum.
13. As a sequel of our above discussion, we hold that the impugned order dated 31.10.2019 passed by the learned District Forum, Kangra at Dharamshala does not suffer from any legal infirmity and as such, the instant appeal filed by the appellant/complainant is devoid of any merit and is accordingly dismissed. The parties are, however, left to bear their own costs.
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Ex. Head Constable Chamel Singh Vs. Kuldeep Bhatia, Advocate & Ors. F.A. No.361/2019
14. Certified Copy of order be sent to learned District Commission for information. Certified copy of order be transmitted to parties free of costs strictly as per rules. File of State Commission be consigned to record room after due completion. F.A.No.361/2019 is disposed of. Pending application(s) if any also disposed of.
Sunita Sharma Presiding Member R.K.Verma Judicial Member 30.07.2021 Manoj 11