State Consumer Disputes Redressal Commission
Sh. Anant Ram Negi. vs Sh. Nareshwar Chandel. on 7 November, 2017
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 42/2017
Date of Presentation: 28.02.2017
Order Reserved On : 17.07.2017
Date of Order : 07.11.2017
......
Anant Ram Negi son of late Shri Dhani Ram Negi resident of
Village Halaila Post Office Mahasu Tehsil Kotkhai District
Shimla H.P.
...... Appellant/Complainant
Versus
Nareshwar Chandel Advocate Hotel White Lakkar Bazar Shimla
H.P.
......Respondent/opposite party
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Hon'ble Ms. Meena Verma Member
Whether approved for reporting?1 Yes.
For Appellant : In person
For Respondent : Mr. Peeyush Verma Advocate.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 23.01.2017 passed by Learned District Forum in consumer complaint No.160/2014 title Anant Ram Negi Versus Nareshwar Chandel Advocate.
1 Whether reporters of the local papers may be allowed to see the order? Yes.
Anant Ram Negi Versus Nareshwar Chandel (F.A. No.42/2017) Brief facts of Case:
2. Shri Anant Ram Negi filed consumer complaint under section 12 of Consumer Protection Act 1986 pleaded therein that complainant is owner in possession of house and complainant insured the house with United India Insurance Company Ltd. Timber House Shimla in consideration amount of Rs.91.00 lac. It is further pleaded that complainant also paid premium to the tune of Rs.5733/-(Five thousand seven hundred thirty three) to the insurance company. It is pleaded that in the year 2001 the house of complainant was burnt in fire and police report was lodged. It is further pleaded that insurance company was also informed. It is further pleaded that insurance company also appointed surveyor. It is further pleaded that complainant sustained loss to the tune of Rs.2187700/-(Twenty one lac eighty seven thousand seven hundred) and insurance company accepted the claim to the tune of Rs.212943/-(Two lac twelve thousand nine hundred forty three) and also issued cheque. It is further pleaded that in the year 2004 complainant engaged Shri Nareshwar Chandel Advocate to file the claim before consumer Forum. It is further pleaded that opposite party informed the complainant that consumer complaint stood filed in the Consumer Forum. It is further pleaded that consumer complaint was dismissed due to delay in filing the complaint. 2
Anant Ram Negi Versus Nareshwar Chandel (F.A. No.42/2017) It is pleaded that complainant engaged the advocate in the year 2004 but complaint was filed before the Consumer Forum on dated 28.03.2007. It is pleaded that opposite party did not file consumer complaint before Consumer Forum continuously for three years and committed deficiency in service. It is further pleaded that no application for condonation of delay was filed by the opposite party before the Consumer Forum. It is further pleaded that even ex-parte proceedings were conducted by learned District Forum against insurance company but ex-parte proceedings were set aside against insurance company when no objection certificate was given by opposite party. Complaint was dismissed by learned District Forum on ground of limitation against insurance company.
3. It is further pleaded that thereafter appeal filed before State Commission and State Commission dismissed appeal in default on dated 07.09.2011. It is further pleaded that thereafter M.A. No.11 of 2012 was filed before State Commission for restoration of appeal but same was dismissed on 28.02.2012. It is pleaded that thereafter revision petition No.969 of 2012 was filed before Hon'ble National Commission and Hon'ble National Commission restored appeal before State Commission subject to payment of costs of Rs.10000/- (Ten thousand). It is pleaded that thereafter State Commission remanded back complaint to learned District 3 Anant Ram Negi Versus Nareshwar Chandel (F.A. No.42/2017) Forum and also given liberty to complainant to file application for condonation of delay before learned District Forum. It is pleaded that on 22.07.2013 again consumer complaint was dismissed by learned District Forum. Thereafter again appeal No.228 of 2013 was filed before State Commission by complainant which was dismissed on 12.11.2013. Thereafter complainant again filed revision petition No.119 of 2014 before Hon'ble National Consumer Commission and same was dismissed as withdrawn. Complainant sought relief for refund of Rs.1973757/-(Nineteen lac seventy three thousand seven hundred fifty seven) alongwith interest @ 18% per annum.
4. Per contra version filed on behalf of opposite party pleaded therein that complainant has no locus standi to file and maintain the complaint. It is pleaded that opposite party did not provide any deficient service to the complainant. It is pleaded that complaint against opposite party is not maintainable. It is further pleaded that complainant has no cause of action and opposite party did not commit any unfair trade practice. It is pleaded that complaint was drafted on dated 15.12.2006. It is further pleaded that opposite party asked the complainant to supply the documents but complainant did not supply the documents to the opposite party. It is pleaded that complaint No.72/2007 was dismissed by learned District Forum and thereafter appeal was preferred before State Commission which was allowed 4 Anant Ram Negi Versus Nareshwar Chandel (F.A. No.42/2017) and complaint was remanded back to learned District Forum to permit the complainant to explain the delay in filing the complaint. It is pleaded that thereafter appropriate application was filed for condonation of delay but learned District Forum dismissed the application as well as complaint. It is pleaded that thereafter again appeal was preferred before the State Commission which was dismissed by the State Commission. It is pleaded that thereafter revision petition was filed before Hon'ble National Consumer Commission which was dismissed as withdrawn. It is pleaded that thereafter complainant for the first time levelled allegations against the opposite party and filed fresh complaint against learned Advocate. It is further pleaded that complainant also filed complaint against the opposite party before the Bar Council of Himachal Pradesh. It is pleaded that the claim is exceeding Rs.20.00 lac and jurisdiction of learned District Forum is barred. It is pleaded that present complaint is prima facie barred by limitation. It is further pleaded that complainant is estopped to file the present complaint by his own acts, deeds, conduct and acquiescence. It is denied that complainant engaged opposite party as advocate in the year 2004. It is pleaded that complainant did not pay the professional charges of opposite party. Prayer for dismissal of complaint sought.
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Anant Ram Negi Versus Nareshwar Chandel (F.A. No.42/2017)
5. Complainant also filed rejoinder and reasserted the allegations mentioned in the complaint. Learned District Forum dismissed the complaint. Feeling aggrieved against order passed by Learned District Forum appellant filed present appeal before State Commission.
6. We have heard appellant in person and learned advocate appearing on behalf of respondent and we have also perused entire record carefully.
7. Following points arise for determination in present appeal.
1. Whether it is expedient in the ends of justice to decide professional misconduct complaint against advocate under Consumer Protection Act 1986 when complaint relating to profession misconduct against advocate qua same facts was dismissed by Bar Council of Himachal Pradesh on dated 21.06.2015 under Advocate Act 1961.
2. Final order.
Findings upon point No.1 with reasons:
8. Complainant filed affidavit in evidence. There is recital in affidavit that complainant has engaged the opposite party as advocate for filing consumer complaint against insurance company. There is further recital in affidavit that residential house of complainant burnt in fire in the year 2001 and complainant sustained loss to the tune of Rs.2187700/-(Twenty one lac eighty seven thousand seven hundred). There is further recital in affidavit that insurance company only approved the claim to the tune of Rs.212943/- 6
Anant Ram Negi Versus Nareshwar Chandel (F.A. No.42/2017) (Two lac twelve thousand nine hundred forty three). There is further recital in affidavit that complainant engaged opposite party as advocate in the year 2004. There is further recital in affidavit that opposite party obtained the signature of the complainant upon many papers. There is further recital in affidavit that opposite party filed consumer complaint in the year 2006. There is further recital in affidavit that insurance company was proceeded against ex-parte before learned District Forum but opposite party has given no objection for setting aside ex-parte order against the insurance company. There is further recital in affidavit that thereafter consumer complaint was dismissed by learned District Forum and thereafter appeal was filed before State Commission and complaint was remanded back to learned District Forum. There is further recital in affidavit that again learned District Forum dismissed the complaint on the ground of limitation and thereafter again appeal was filed before State Commission which was dismissed by State Commission. Thereafter revision petition was filed before Hon'ble National Consumer Commission which was dismissed as withdrawn. There is further recital in affidavit that opposite party has committed deficiency in professional service.
9. Opposite party Shri Nareshwar Chandel advocate filed affidavit in evidence. Opposite party denied all the allegations levelled by the complainant in the complaint. 7
Anant Ram Negi Versus Nareshwar Chandel (F.A. No.42/2017) There is recital in affidavit that complainant filed the complaint before Bar Council of Himachal Pradesh on the similar ground of professional misconduct and the proceeding was dropped by Bar Council of Himachal Pradesh finally on 21.06.2015.
10. Submission of appellant that opposite party namely Nareshwar Chandel had committed professional deficiency in service and on this ground appeal be allowed is decided accordingly. It is proved on record that complainant has filed the complaint against the opposite party qua professional misconduct on similar ground under Advocate Act 1961 and it is proved on record that complaint filed by complainant against Nareshwar Chandel advocate was dropped by Bar Council of Himachal Pradesh qua professional deficiency on dated 21.06.2015 under Advocate Act 1961.
11. It is proved on record that on 22.09.2010 complaint filed by complainant against insurance company was dismissed and it is proved on record that thereafter appeal No.17/2011 was filed before State Commission which was dismissed for non-prosecution on dated 07.09.2011. It is proved on record that thereafter application was filed before State Commission for restoration of appeal which was dismissed by State Commission. State Commission held that power to review its own order is not available with the State Commission in view of ruling of Hon'ble Supreme Court 8 Anant Ram Negi Versus Nareshwar Chandel (F.A. No.42/2017) reported in 2011(IV) CPJ 35(SC) titled Hitendra Pathak & Ors. Versus Achyut Kashinath Karekar & Anr. Thereafter complainant Shri Anant Ram Negi filed revision petition No.969/2012 which was decided by Hon'ble National Consumer Commission on 03.08.2012. On dated 03.08.2012 Hon'ble National Consumer Commission restored the appeal before State Commission subject to payment of costs to the tune of Rs.10000/-(Ten thousand). Thereafter State Commission remanded complaint to learned District Forum. Thereafter learned District Forum again dismissed complaint. Thereafter complainant again filed appeal before State Commission which was dismissed. Thereafter complainant again filed revision petition before Hon'ble National Commission which was dismissed as withdrawn on 02.04.2014.
12. State Commission is of the opinion that Consumer Protection Act 1986 and Advocate Act 1961 are two independent Acts. It is held that all complaints against advocates could be filed under Advocate Act 1961 relating to professional deficiency. It is proved on record that complainant had filed the complaint against advocate namely Nareshwar Chandel before Bar Council of Himachal Pradesh under Advocate Act 1961 on similar grounds. It is proved on record that complaint filed by complainant against advocate on similar ground was dismissed by Bar Council of Himachal 9 Anant Ram Negi Versus Nareshwar Chandel (F.A. No.42/2017) Pradesh on dated 21.06.2015. Complainant did not place on record any order in order to prove that order passed by Bar Council of Himachal Pradesh was stayed by Bar Council of India. It is proved on record that Bar Council of Himachal Pradesh has finally disposed of complaint against the opposite party qua professional deficiency and it is also proved on record that Bar Council of Himachal Pradesh has exonerated Shri Nareshwar Chandel qua professional deficiency. Order passed by Bar Council of Himachal Pradesh dated 21.06.2015 is quoted in toto :-
Fax: 0177-2658071 E-mail: [email protected] Phones: 2657455 & 2659071 BAR COUNCIL OF HIMACHAL PRADESH High Court Complex Raveneswood Extracts from the minutes of the meeting of the Bar Council of Himachal Pradesh held on 21st June, 2015.
To consider the complaint case No. CC-18/2014 of Anant Ram Negi against Shri Nareshwar Singh Chandel Advocate, Bar Association H.P. High Court.
Reply has been received from respondent. From the perusal of the contents of complaint and the reply it is evident that the main dispute appears to be as to whether documents to file Complaint was given to the Advocate in the year 2004 or in the year 2006 when the Complaint was in fact filed. It is a fact that initially the complaint was inter -alia dismissed on the ground of limitation by District Consumer Forum but when the matter was pending before the Learned National Consumer Dispute Redressal Commission the petitioner himself withdrew the revision petition. There is specific reply by respondent that documents were given to him in the year 10 Anant Ram Negi Versus Nareshwar Chandel (F.A. No.42/2017) 2006 which facts have been appreciated by lower authorities. Now the fact of withdrawal of revision petition before learned National Consumer Disputes Redressal Commission virtually dilutes the allegations being made against the respondent. The State Bar Council is of the view that in the facts and circumstances it is not case of a professional misconduct and the present proceedings are dropped. The Complainant may be informed accordingly.
Sd/-
Secretary Bar Council of (H.P).
13. Advocate Act 1961 and Consumer Protection Act 1986 are two independent Acts. State Commission is of the opinion that it is not expedient in the ends of justice to pass any contradictory order under Consumer Protection Act 1986 when complaint filed by the complainant on similar ground was dismissed by Bar Council of Himachal Pradesh under Advocate Act 1961. It was held by Hon'ble National Consumer Commission that when any statutory authority has disposed of the similar matter earlier finally then it is not expedient in the ends of justice to pass any contradictory order under Consumer Protection Act 1986 subsequently. See 2006(3) CPR 339 NC The Installment Supply Ltd. Versus Kangra Ex Serviceman Transport Co. and others.
14. Submission of learned Advocate appearing on behalf of opposite party that Bar Council of Himachal Pradesh has already dismissed the complaint filed under Advocate Act 1961 on similar grounds and on this ground appeal be 11 Anant Ram Negi Versus Nareshwar Chandel (F.A. No.42/2017) dismissed is decided accordingly. We are of the opinion that State Commission is not appellate authority of Bar Council of Himachal Pradesh. It is held that appellate authority of Bar Council of Himachal Pradesh is Bar Council of India. We are of the opinion that it is not expedient in the ends of justice to pass contradictory order under Consumer Protection Act 1986 in view of the fact that Bar Council of Himachal Pradesh has also disposed of complaint against advocate Nareshwar Chandel under Advocate Act 1961 qua professional deficiency finally. It is held that it is not expedient in the ends of justice to interfere in the order of learned District Forum in view of the final decision of Bar Council of Himachal Pradesh under Advocate Act 1961 qua similar grounds. We are of the opinion that complainant was at liberty to file appeal before Bar Council of India against the order of Bar Council of Himachal Pradesh dated 21.06.2015 passed under Advocate Act 1961. In view of above stated facts point No.1 is decided accordingly. Point No.2: Final Order
15. In view of findings upon point No.1 above appeal is dismissed. Order passed by learned District Forum is affirmed. Order passed by Bar Council of Himachal Pradesh dated 21.06.2015 under Advocate Act 1961 will form part and parcel of order. Parties are left to bear their own litigation costs before State Commission. File of learned District Forum alongwith certified copy of order be sent back forthwith and 12 Anant Ram Negi Versus Nareshwar Chandel (F.A. No.42/2017) file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member Meena Verma Member 07.11.2017.
KD* 13