State Consumer Disputes Redressal Commission
R.Sathish Kumar, vs Muktha.N, on 23 August, 2012
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram First Appeal No. A/11/242 (Arisen out of Order Dated 17/02/2011 in Case No. CC/06/127 of District Kollam) 1. R.Sathish Kumar Sree Rohin,Thevally,Kollam Kollam Kerala ...........Appellant(s) Versus 1. Muktha N Koykkalethu,Maruthoorkulangara,Alumkadavu,Karunagappally,Kollam Kollam Kerala ...........Respondent(s) BEFORE: SRI.K.CHANDRADAS NADAR PRESIDING MEMBER PRESENT: ORDER
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD, THIRUVANANTHAPURAM
COMMON JUDGMENT IN APPEAL NOS.242/11 AND 308/11
JUDGMENT DATED:23.8.2012
PRESENT
SRI.K.CHANDRADAS NADAR : JUDICIAL MEMBER
SMT.A.RADHA : MEMBER
APPEAL NO.242/2011
R.Sathish Kumar, : APPELLANT
S/o Late N.Ramakrishna Pillai,
Advocate, Sree Rohin, Thevally P.O.,
Kollam - 9.
(By Adv.Thampi.V.S)
Vs.
Muktha.N, : RESPONDENT
Koykkalethu,Maruthoorkulalngara,
Alumkadavu.P.O., Karunagappally,
Kollam.
APPEAL NO.308/2011
Muktha.N, : APPELLANT Koykkalethu,Maruthoorkulalngara,
Alumkadavu.P.O., Karunagappally,
Kollam.
Vs.
R.Sathish Kumar, : RESPONDENT
Koykkalethu,
Maruthoorkulalngara,
S/o Late N.Ramakrishna Pillai,
Advocate,
Sree Rohin, Thevally P.O.,
Kollam - 9.
JUDGMENT
SRI.K.CHANDRADAS NADAR : JUDICIAL MEMBER In these appeals the order of the CDRF, Kollam in CC.127/06 dated 17.2.11 is challenged. The opposite party is the appellant in appeal 242/11. Complainant is the appellant is appeal 308/11. The complaint was filed for realization of compensation alleging professional deficiency in service on the part of the opposite party. After omitting unnecessary details, the allegations in brief are that the opposite party is a practising lawyer and the complainant engaged him to conduct the case against her husband in the Family Court, Kollam. For filing 3 separate cases, the opposite party received Rs.10000/- as fees from the complainant and Rs.3500/- towards other expenses. But the opposite party deliberately did not mention the details furnished by the complainant about her husband. On the contrary he included certain details which were not furnished by the complainant which were false and defamatory. He filed OPHMA 272/05 on 18.6.05 in the Family Court, Kollam. However prior to the filing of the said petition he colluded with the husband of the complainant who filed OPHMA 264/05 on 16.6.05 in the same court seeking nullity of marriage. The opposite party insisted to file a petition for nullity of marriage as against the wish of the complainant to file petition for divorce as well as nullity of marriage. He also did not permit the complainant to attend the counselling directed by the Family Court with a view to get disposal of both the cases on mutual consent. The complainant did not agree for mutual consent. The opposite party with a view to deprive the complainant of the opportunity to adduce proper evidence and to help her husband filed petition before the Hon'ble High Court of Kerala in which direction was issued to dispose of the cases within six months. But even after the receipt of the order of the High Court the opposite party did not file objection in the petition filed by the husband. Ultimately the Family Court granted adjournment for filing objection on 13.3.06 imposing cost of Rs.200/- and with an order of no further time to 27.3.06. But on 25.3.06 the opposite party relinquished his engagement. The next day was a Sunday and the opposite party was aware that the complainant would not be able to engage another counsel and file objection. In that case the result would be dismissal of the petition filed by the complainant and the petition filed by the husband would be allowed. As a result the case filed by the complainant before the Family Court was dismissed and case filed by the husband was allowed thereby causing severe mental agony and harassment to the complainant. This amounts to deficiency in service on the part of the complainant. Not only that, the opposite party deliberately included averments in the petition filed before the Family Court on behalf of the complainant which were defamatory to the complainant and affected her very chastity. This also amounted to professional negligence and deficiency on the part of the opposite party. Hence the complaint seeking compensation from the opposite party.
2. The opposite party contended before the Forum that the complainant and her mother had approached him with a request to file a petition before the Family Court, Kollam. The opposite party informed the complainant that he was mainly practising at the High Court and he would not be available at Kollam on all posting dates but only on Saturdays and Sundays. Thereupon the complainant agreed that the case may be conducted through his junior Advocates. After hearing the complainant he prepared a draft of the petition to be filed before the Family Court. The draft was read over to the complainant and she expressed satisfaction. The petition was filed before the Family Court. At that time it was known that the husband of the complainant had preferred another petition for nullity of marriage before the same court. The opposite party demanded Rs.3000/- towards fee and expenses but complainant paid only Rs.2500/-. On all posting dates of the case filed by the complainant the junior counsel of the opposite party used to appear. The case filed by the husband was posted for filing objection on 13.3.06. The complainant was present when the said posting was made. The Junior counsel of the opposite party had sought time to file objection and told the complainant to meet the opposite party for preparing the objection on any Saturday or Sunday. But the complainant did not turn up. Therefore on 13.3.06 the Court ordered no further time for filing objection. However the complainant did not come on any Saturday or Sunday to meet the opposite party. So the objection could not be filed on that day also. Court ordered cost of Rs.200/- and adjourned the case to 27.3.06. The junior counsel informed the complainant that if she failed to meet the opposite party the case would be decided ex-parte. There upon on 18.3.06 the complainant came along with her mother to the office of the opposite party and objection was prepared and read over to them. A petition for subjecting the husband of the complainant for medical examination was also prepared. Thereafter on 20.3.06 he went to Ernakulam after informing the complainant to go to his office on 20.3.06 or 21.3.06 or 22.3.06 to sign the objection and the petition and to pay a sum of Rs.2500/- towards advocate fee. On 22.3.06 the complainant went to the office of the opposite party. There upon his clerk handed over the objection to the complainant. There after the opposite party talked to the complainant over telephone. When he asked about the fee she said that this case may also be conducted along with the other case and because of financial difficulties, she was unable to pay separate fee for this case. The opposite party informed the complainant that he was not willing to conduct the case without fee. The complainant and her mother got enraged and said that they were not filing objection. Then the complainant accused the opposite party that he had received Rs.100000/- as bribe from her husband. Thereupon the opposite party told the complainant to come to his office on 25.3.06 and receive the memo relinquishing the vakalath. Accordingly on 25.3.06 the complainant and her mother come to the office of the opposite party and offered to pay Rs.2500/- to conduct the case. However since the conduct of the complainant showed that she had no confidence on the opposite party, he relinquished his vakalath and handed over the records of both the cases which was received by the complainant without any objection. Till that point of time the complainant raised no complaint regarding the conduct of the case by the opposite party. The allegation that he colluded with the husband of the complainant is false. There was no deficiency in service on his part. No averment was included to defame the complainant. The complainant approached the Forum with a view to damage the reputation of the opposite party. Hence the complaint was liable to be dismissed.
3. The CDRF, Kollam once disposed of the complaint. The said order was challenged before this Commission and the matter was remitted back to the CDRF to record further evidence. After remand further evidence was recorded. The evidence consisted of the oral evidence tendered by the complainant and Exts.P1 to P75 were marked on her side. The opposite party tendered oral evidence and one witness was also examined on his side. Exts.D1 to D25 were marked on his side. The Forum held that deficiency in service on the part of the opposite party was proved and accordingly allowed the complaint in part and directed the opposite party to pay compensation of Rs.30000/- to the complainant with interest at the rate of 9% per annum from the date of complaint. He was also directed to pay cost of Rs.1500/-. Aggrieved by the said order of the CDRF, Kollam the opposite party has preferred appeal No.242/11. The complainant was not satisfied with the amount of compensation awarded by the Forum. Hence appeal No.308/11 by her. The identical questions that arise for consideration in these appeals are:
1) Whether the conclusion of the CDRF, Kollam that there was deficiency in service on the part of the appellant in 242/11 can be sustained on the available evidence?
2) If so what is the quantum of compensation that can be awarded to the complainant?
4. Point Nos. 1 and 2: The marriage between the complainant and one Prasannan was solemnized on 14.7.04 as per customary rites at Valiyakulangara temple. It was the 2nd marriage of both the complainant and Prasannan. It appears that the marital relationship did not last long. According to the complainant she approached the opposite party to file necessary petition for nullity of marriage and divorce in March, 2005 and entrusted the documents necessary for filing petition in the Family Court, Kollam. But he delayed the filing of the case till 18.6.05 on which day he filed OPHMA 272/05. She further alleged that two days prior to that, on 16.6.05 the husband of the complainant has preferred OPHMA 264/05 before the same court for nullity of marriage. Copies of both the complaints and judgment pronounced by the Family court are marked in evidence. The complainant sought nullity of marriage on the allegation that the fact that Prasannan was impotent and not able to consummate the marriage was not disclosed to her prior to the marriage. On the contrary nullity of marriage was sought against the complainant on the allegation that she was elder in age to Prasannan and suppression of that fact at the time of proposal amounted to fraud played on him. The several allegations and counter allegations in this regard are not the subject matter of decision by this Commission. The Family court is seized with that matter and in fact had rendered its judgment. It was submitted at the time of arguments that an appeal was filed before the Hon'ble High court challenging that decision and the matter was remitted back to the Family Court. So issues regarding nullity of marriage or divorce as the case may be would be settled by the Family court. The only concern of this Commission is the alleged deficiency in service on the part of the opposite party. It is seen that counter claim was raised by the opposite party. According to him his reputation was affected by the false complaint. The Forum could not have decided such a counter claim. The only concern as indicated earlier is whether there was deficiency in service on the part of the opposite party. Being an advocate by profession the standard of service expected of him is that of an advocate of reasonable standards. Service of an advocate of very high standard or of an advocate of poor standard is not what is expected of him. So the question is whether while rendering his service the opposite party /appellant in A.242/11 has exhibited the standard of an advocate of reasonable standards and whether he has taken care of his client as expected of a reasonable professional man.
5. The allegations of deficiency in service and negligence on the part of the opposite party are three fold. Firstly it is alleged that though the complainant had entrusted records with the opposite party with instructions to file petition for divorce on behalf of her as early as in March 2005, he deliberately delayed the filing of the petition till 18.6.05. By the time her husband filed OPHMA 264/05 on 16.6.05 for identical relief. The accusation made is that the opposite party had in fact handed over the copy of her petition to the counsel who filed petition on behalf of her husband with a view to help her husband to counter the case of the complainant. The complainant who argued the case in person wanted us to take the said inference based on the fact that certain allegations found in her complaint were reproduced in the complaint filed by her husband. The Forum brushed aside this argument holding that since both the petitions were for identical reliefs, the allegations might have been due to coincidence . In Ext.P14 petition filed by the complainant it is seen alleged that "ultimately she found that her husband was impotent and that he was lacking of ability to perform full and complete sexual intercourse and thus incapable to performing sexual intercourse due to malformation of male organ and having female sex organ. He was still impotent". In Ext.P15 petition filed 2 days earlier by the husband, averments are seen included to counter the said allegation. In paragraph six it was alleged that the complainant had accused him that "he was an eunuch and had failed in consummating the marriage and leveled allegations to the extent that he was having sex organs of both male and female and hence the marriage itself was null and void and the same was carried out on deliberate suppression of facts. While the petitioner was in custody, his inlaws had given a request to the SP of police stating and asserting that he was having no defect as alleged and hence medical examination had to be conducted. On medical examination the doctor had given a certificate that he is having no infirmities as alleged and is having no problem regarding his potency". So the allegations in the petition of the complainant before the Family Court are countered in the petition of her husband. Of course the wordings are different. This may not be coincidence as found by the CDRF, Kollam. It is pertinent to notice that the allegation in OPHMA 272/05 filed by the complainant is that "she was under house arrest by the husband and his relatives till 15/9/04 and on that day she escaped from their residence miraculously and thus she herself saved her life". So before separation there must have been all sort of accusations and counter accusations and the information found in the petition of the husband can very well be the accusation leveled against him during the strained stay of the complainant at the residence of her husband. So it would not be proper, based on this fact alone to put the blame on the opposite party and find that he had sided with the husband and in advance furnished copy of the petition that was going to be filed on behalf of the complainant. There is also no indication that the complainant had approached the opposite party with the request to file petition for divorce as early as in March 2005. In fact the earlier proceedings under Section 498 (A) IPC was conducted by the complainant through a different advocate.
6. It is the further allegation of the complainant that the opposite party deliberately delayed the filing of objection in OPHMA 264/05 with a view to help her husband. CDRF, Kollam found that there was deficiency in service on the part of the opposite party on this aspect. According to the opposite party he had infact prepared the objection to be filed in OPHMA 264/05 but the complainant and her mother failed to turn up to sign the objection. When they turned up they did not offer the fees demanded by him and finally they made an accusation that he had received bribe of I,00,000/- from the husband and so was siding with him. The relinquishment of vakalath was made in the context of the said accusation. It is seen from the proceedings in OPHMA 264/05 that service of notice was completed on 27.8.05 and the matter was posted for filing objection of the complainant and her mother to 19.9.05. There was no sitting of Family court on that day and the matter was adjourned to 1.12.05. On the said day the matter was adjourned for filing objection to 13.2.06. On the said day the matter was further adjourned to 13.3.06 with an order of no further time. Since no objection was filed on 13.3.06 also cost of Rs.200/- was imposed which was directed to be paid within two weeks and the mater was adjourned for filing objection to 27.3.06. It is seen from Ext.P27 copy of order of the Hon'ble High Court of Kerala in WP(c )No.2438/06 dated 25.1.06 that the husband of the complainant has approached the Hon'ble High Court seeking direction for expeditious disposal of both the OPHMAs. The writ petition was allowed and the Family court was directed to dispose of the cases within six months from the date of receipt of the copy of the judgment of the Hon'High Court, with further direction to report compliance. The further grievance of the complainant is that though the opposite party was aware of this direction of the Hon'ble High Court, he was too careless in preparing objection in time and filing it before the Family Court. As a result the complainant sustained mental agony and lost her case. She had to fight again before the Hon'ble High Court and get the matter remanded involving further expenditure. Ext.P33 is the copy of judgment pronounced by the Family court, Kollam in OPHMA 264/05 and OPHMA 272/05 on 22.9.06. It is seen from the copy of the said judgment that since the parties were husband and wife, the case put up in the petition of the complainant was treated as objection also. It is further seen that both the petitions were jointly tried. The petitioner/husband in OPHMA 264/05 was examined as PW1. The petitioner in OPHMA 272/05 the complainant herein was examined as CPW1. It is further seen that on the application of the present complainant medical examination of the husband was conducted. The medical report was that the husband suffered from no congenital or acquired defects and had normal genitalia. Further there was nothing to suggest that he was incapable of doing sexual intercourse. It was after considering the medical report also that the petition filed by the present complainant was dismissed. The petition filed by the husband was allowed on the ground that the suppression of actual age of the complainant amounted to fraud. The correctness of the said decision may be doubtful but it is not for the CDRF or for the Commission to pronounce upon the correctness to such issues to be considered by the Family Court and superior courts. But the fact remains admitted that there was some dispute between the complainant and the advocate regarding the fees to be given by her. No doubt the advocate can demand the statutory fees from his client and if the client fails to pay the fees he may be justified in relinquishing the vakalath. But there is a way of doing such things. I have referred to the proceedings in OPHMA 264/05. If as a matter of fact the complainant was not co-operating in preparing the objection, the learned counsel ought to have sent registered notice inviting her attention to the lively consequences. That was not done. In fact from the way in which the complainant conducted herself before this Commission and the Forum there is little scope for accusing the complainant in showing laxity in conducting her case. In fact she was over enthusiastic to the extent of even pressing absurd arguments. She was patiently present to argue the matter in person on all posting dates. So was the learned counsel who is the opposite party. It is also seen that distrust developed between the complainant and her counsel. In fact it appears from the evidence adduced that she has doubted the integrity of all her advocates and preferred complaint against them before the Bar council of Kerala. Complaint was filed against the opposite party advocate also before the Bar council of Kerala but he was exonerated by the Bar council. That decision need not influence the decision of this Commission as the question for decision is the deficiency in service. Not only that, the complainant accused her counsel that he had received bribe from the opposite party on 22.3.06. Then he was not justified in delaying relinquishment of the vakalath till 25.3.06. 26.3.06 was admittedly a Sunday and the final posting of the case was on 27.3.06. So the complainant was deliberately denied opportunity to engage another lawyer. It would have been proper for the advocate to have represented the matter before the Family Court and apprised that since the client had expressed distrust he was relinquishing vakalath or then and there, when the accusation was made on 22.3.06. Having failed to do so amounted to clear deficiency in service as found by the CDRF, Kollam.
The complainant has also taken objection to the following allegation in OPHMA 272/05 which was admittedly drafted by the opposite party. Paragraph six of the petition reads "At the time of proposal of the said pretended marriage respondent his mother, sister and the broker who arranged the marriage told the petitioner and her mother and brother that the respondent is working at the pharmacy department of Vellore Christian Medical College and drawing a salary of Rs.7000/- per month and that respondent will arrange a job for the petitioner also in the said medical college and they can settle there and can live happily with two children born on them and that he is able to perform full and complete sexual intercourse". According to the complainant the said allegation leaves much to be desired and is defamatory to her as it gives the impression that even before the marriage she demanded full and complete sexual intercourse. Further two children were already born to them. The learned counsel who is the opposite party argued that it was a clerical mistake and the correct expression would have been "two children to be born to them". But as pointed out by the CDRF, Kollam he is a responsible advocate and such omissions should not have happened. Paragraph six of the petition is, as a whole unpleasantly worded and derogatory of the character of the complainant. The complainant may be a graduate and might have read the petition before it was filed but certainly as contended by her, the said averments gave opportunity to her husband and counsel to humiliate her during cross examination. Such a thing was least appreciable. It is also irrelevant that even at a subsequent point of time the complainant apparently wanted to retain the opposite party as her counsel. In short, as a whole the appellant advocate failed to meet the standard of a professional man of reasonable standard in conducting the case of the complainant. Hence we find no error in the conclusions of CDRF, Kollam. Coming to the compensation awarded, considering the over all circumstances we find no circumstance to interfere with the discretion exercised by CDRF, Kollam. Hence both appeals are liable to be dismissed.
In the result both the appeals are dismissed and the parties are directed to bear their respective costs.
SRI.K.CHANDRADAS NADAR : JUDICIAL MEMBER
SMT.A.RADHA : MEMBER
ps
[ SRI.K.CHANDRADAS NADAR] PRESIDING MEMBER