State Consumer Disputes Redressal Commission
Ms. Vandita Trivedi vs Ms. Krishna Singh on 29 March, 2011
BEFORE THE HON BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA, MUMBAI First Appeal No. A/08/9 (Arisen out of Order Dated 06/12/2007 in Case No. Complaint Case No. CC/07/136 of District Mumbai(Suburban)) 1. Ms. Vandita Trivedi 2148/Shant Sadan, 43, Gandhi Nagar, Bandra (E), Mumbai 400 051. Maharastra ...........Appellant(s) Versus 1. Ms. Krishna Singh A-606, Everest Apartment, Versova, Andheri (W), Mumbai 400 061. Maharastra ...........Respondent(s) First Appeal No. A/08/163 (Arisen out of Order Dated 06/12/2007 in Case No. Complaint Case No. CC/07/136 of District Mumbai(Suburban)) 1. Ms. Krishna Singh, A-606, Everest Apt., Versova, Andheri (W), Mumbai - 400 061. Maharashtra ...........Appellant(s) Versus 1. Advocate Miss. Vandita Trivedi 2148, Shanti Sadan Mhada, 43, Gandhi Nagar, Bandra (E), Mumbai - 400 051. Maharashtra ...........Respondent(s) BEFORE: Hon'ble Mr. P.N. Kashalkar PRESIDING MEMBER
Hon'ble Mr. Dhanraj Khamatkar Member PRESENT:
Ms.Vandita Trivedi, original Opponent in person.
Ms.Krishna Singh, original Complainant in person.
O R D E R Per Shri P.N. Kashalkar Honble Presiding Judicial Member:(1)
By this common judgement we are disposing of First Appeal No.09/2008 filed by the original Opponent and First Appeal No.163/2008 filed by the original Complainant challenging the judgement and award passed by the Consumer disputes Redressal Forum, Mumbai Suburban District on 06.12.2007. By allowing the complaint partly filed by Ms.Krishna Singh, the District Forum, directed the Opponent Advocate to refund an amount of `3,750/- and `10,000/- and also directed to pay cost of `1,000/- within 30 days from the date of receipt of order and rest of the reliefs were dismissed. As such, both, original Complainant as well as original Opponent, have filed these two appeals.(2)
Facts to the extent material may be stated as under:
Complainant appears to be an Assistant Art Director who was employed by M/s.Design Works, Jogeshwari (W), Mumbai. But, she was not paid her dues for some period. Then she filed complaint under M.R.T.U. and P.U.L.P. Act, 1971, before Industrial Tribunal, Mumbai for non-payment of her salary parts totally amounting to `60,000/-. For filing proceeding before Industrial Tribunal she availed services of Opponent Advocate. The Complainant pleaded that while filing proceeding under U.L.P. Petition No.14/2006 the Advocate had not explained the delay in filing the appeal properly. As such her application for condonation of delay was rejected by order dated 13/07/2006. According to her the Advocate was guilty of negligence in not informing her and guiding her properly. She is also guilty of deficiency in service and for deficient service and negligence of the Advocate she suffered loss of `60,000/- and hence she claimed refund of fees paid of `7,500/- with interest @18% per annum, reimbursement of `60,000/- loss suffered by her and she claimed interest @18% per annum on total amount of `1,21,500/-. Thus, she claimed award of `1,89,000/- besides `5 lac as professional loss suffered by her.(3)
Opponent filed written version and pleaded that the consumer complaint filed by the Complainant is false and frivolous. Complainant is not a Consumer. She pleaded that she accepted the brief of the Complainant on 23.01.2006. On that day initial introduction of the dispute was made by Complainant to her. Complainant then brought some documents on 25.01.2006. After examination of the documents she found that claim of the Complainant would be `60,000/-. She pleaded that letter of appointment issued by the employer in her favour was three years old requiring explanation for condonation of delay. The delay was caused by the Complainant on her own. The Opponent further pleaded that Complainant wanted to scrutinize the complaint, hence, she took complaint with her on 30.01.2006. She was told that complaint could be filed on or before 04.02.2006 in the morning. Hence, complaint was filed on the very same day.
The limitation provided to file complaint is three months. The cause of action to file such complaint arose on 07.10.2002. She cited several judgements in support of condonation of delay application, but, the Tribunal was pleaded to hold that delay was not properly explained by sufficient cause and dismissed condonation of delay application. The Complainant therefore preferred review application and the review application also came to be dismissed. She pleaded that there was no deficiency in service on the part of the Opponent and complaint should be dismissed with cost.
(4)The District Forum considered the Affidavit and documents placed on record and held that Complainant had proved deficiency in service on the part of the Opponent Advocate and was pleased to grant refund of `3,750/- plus `10,000/- as compensation by way of mental torture and professional loss and also cost of `1,000/-. Aggrieved by this order, original Complainant has filed Appeal No.163/2008 and original Opponent has filed Appeal No.09/2008.
(5)We heard submissions of Advocate Ms.Vandita Trivide, original Opponent in both the appeals and Complainant, Ms.Krishna Singh in both the appeals. We also heard Advocate Ms.Purav for Ms.Vandita Trivedi, Advocate. As far as appeal of Ms.Vandita Trivedi, Advocate is concerned, we are finding that there is merit in the appeal. Advocate Ms.Purav submitted that Smt.Krishna Singh met Ms.Vandita Trivedi at her office on 23.01.2006 and requested Advocate to sue ex-employer for `60,000/- which was not paid by her employer for the period September, 2002 to November, 2003. She had not brought any papers. Hence, she was given guidance to bring all the papers. Ms.Krishna Singh then brought certain documents and her letter of appointment. On going though the letter of appointment dated 01.02.2002 Appellant pointed out to her that her right to receive monthly payment from her employer along with perks was breached by the employer every month and thus amounted to unfair labour practice on the part of the employer and employer could be taken to Industrial Tribunal under M.R.T.U. and P.U.L.P. Act, 1971 for adjudication of her claim of `60,000/- with interest. Appellant also pointed out that the complaint will have to be filed with the Industrial Tribunal for various wages and allowances. However, there was delay on her part in approaching the Court and there was three years delay in approaching the Court, which had to be explained by making separate application in that behalf for seeking condonation of delay before pursuing her claim of `60,000/- for perks and incidental expenses.
(6)It appears that she was already pursuing independently her efforts through Association of Cine and Tele Art Directors and the Federation of Western India Cine Employees. She had also approached Commissioner of Labour, Mumbai. However, everything was in vain. She was explained all these things. She was also explained that a prayer for condonation of delay of three years would be required to be made before the industrial tribunal. Appellant kept all the papers ready on 30.01.2006. Then Ms.Krishna Singh met her in the office on 31.01.2006. Took her copy of complaint, affidavit, application for condonation of delay drafted by Advocate Ms.Vandita Drivedi and went home and told Advocate Ms.Vandita Trivedi that she would be showing papers to Association of Cine & Tele Art Directors and the Federation of Western India Cine Employees for taking their approval and she would come back to Advocate Ms.Trivedi shortly. Advocate Ms.Trivedi had also told her that the complaint along with condonation of delay application would have to be filed before the Industrial Tribunal at least before 04.02.2006. However, it was the case of Ms.Vandita Trivedi that Ms.Krishna Singh did not come to her office throughout the month of February and she came to her only on 10.03.2006 on which date she informed that the drafting of the complaint, condonation of delay application and affidavit were in order and she was ready to file them. Advocate Ms.Trivedi took Ms.Krishna Singh to the Registrar of Industrial Court and filed the proceeding before the Registrar on the same day. Her complaint was accepted along with affidavit and application for condonation of delay and documents. It was placed before the Honble Member, Industrial Court, Mumbai and on the request of Advocate Ms.Trivedi notice was issued to the ex-employer of Ms.Krishna Singh, which was returnable on 19.04.2006. On 19.04.2006 ex-employer of the opponent was not present. Hence, Ms.Vandita Trivedi made application for reissue of notice at his residence. Accordingly a notice was reissued by the Court and notice was served on ex-employer at his residence and he was called upon to remain present on 13.06.2006 for reply. On that day ex-employer appeared in the Industrial Court with Advocate Ms.Gujare and sought time to file reply on condonation of delay application and on her request matter was fixed to 28.06.2006.
(7)On 28.06.2006 reply was filed and matter was adjourned for arguments to 06.07.2006. On 06.07.2006 adjournment was sought and it was ultimately granted. On 13.07.2006 Shri N.M. Gosavi, I/C Member of Shri V.D. Nandedkar of Industrial Court, Maharashtra Mumbai, before whom the case was filed, was pleased to dismiss the condonation of delay application. In the said order Ld.Member observed that dispute about dues was settled not only once, but twice and for that reason also the delay was not deserved to be condoned. After dismissal of the condonation of delay application by In-charge Member Mr.Gosavi, Review Application was filed, seeking review of the order, but, Ms.Krishna Singh did not approach Advocate Ms.Trivedi. The said review application was also rejected by the Industrial Court by order dated 10th October, 2006.
(8)It appears that Ms.Krishna Singh also filed contempt proceeding against Advocate Ms.Trivedi by moving application on 15.09.2006.
Said Criminal Misc.Application No.01/2006 was dismissed by order dated 10.07.2007. Thus, we are finding that the original Opponent had taken all the due precautions in preparing the complaint, in preparing the affidavit, in preparing the condonation of delay application. She had also argued well before the Member of the Industrial Tribunal when matter came up for deciding condonation of delay application. She had cited Apex Court ruling and she did everything within her command. She left no stone unturned while arguing the case of Ms.Krishna Singh and still the Honble Member Mr.M.V. Gosavi who was In-charge Court of Mr.V.D.Nandedkar, Member of Industrial Court, before whom case was filed was pleased to reject the condonation of delay application vide impugned order. In her view in presenting and filing the complaint under MRTU & PULP Act, 1971, original Opponent had committed no negligence or deficient in service as alleged by Ms.Krishna Singh. What is pertinent to note is the fact that the complaint filed before the Industrial Court was earlier drafted in the month of February, 2006, but the date was scored out and the date 10th day of March 2006 was mentioned. Previously, it was in the month of February, 2006. So, we are finding that Advocate Ms.Trivedi had prepared complaint, under ULP properly and correctly. She had drafted condonation of delay application and affidavit properly and she had kept draft ready on 31st January, 2006 itself, but it was Ms.Krishna Singh who wanted to show the complaint draft, affidavit and condonation of delay application to her Cine Association and she took whole file in February, 2006 for this purpose and ultimately came back to Advocate Ms.Trivedi only on 10th March, 2006 on which day the Ld.Advocate was pleased to file the complaint under M.R.T.U. & P.U.L.P. Act, 1971. The fact that it was dismissed by Mr.M.N. Gosavi, In-charge Member of Industrial Court, is unfortunate. The fact that Review Petition filed was also dismissed is different matter. We are finding that there was no negligence of any kind on the part of Advocate Ms.Trivedi in presenting the complaint on behalf of Ms.Krishna Singh. The Ld.Advocate appearing for Ms.Krishna Singh had taken all the pains required to be taken by Advocate of her standing. She had done everything promptly, but, there was delay of more than a month on the part of Ms.Krishna Singh in approving the draft of complaint, affidavit and condonation of delay application and ultimately it was found by the Ld.Industrial Member that there was no sufficient cause made out in the condonation of delay application to condone the delay and therefore, he was pleased to dismiss the condonation of delay application.
(9)We are of the view on the facts and circumstances narrated above that it is not possible for us to agree with the submissions of Ms.Krishna Singh that Advocate Ms.Trivedi was guilty of deficiency in service of any kind when she was discharging her professional duties as a lawyer for Ms.Krishna Singh in Industrial Court. The District Forum erroneously allowed the complaint in favour of Ms.Krishna Singh when there was no material on record to prove that Advocate Ms.Trivedi was guilty of deficiency in service of any kind in discharging her professional duties as a Lawyer before the Industrial Court. The very fact that her review application came to be dismissed would go to show that the order passed by the Industrial Member rejecting her condonation of delay application was just and proper. In the circumstances, we are finding that the Forum clearly erred in law in allowing the complaint against the Advocate Ms.Vandita Trivedi. Thus, by allowing this appeal of Advocate Ms.Trivedi, said order will have to be quashed and set aside while dismissing the original complaint filed by Ms.Krishna Singh. Simply because lawyer appearing for a client does not succeed even after arguing case studiously, that does not mean that he exhibited negligence of any kind in prosecuting the said matter in a court of law. Many a times client loses case, since it is inherently weak. For losing cases clients cannot be permitted to level charge of deficiency in service on the part of arguing Counsel.
(10)Ms.Krishna Singh has also filed sister appeal bearing No.163/2008 for seeking enhancement in compensation. Since, we are finding that the original complaint is liable to be dismissed by allowing appeal preferred by Ms.Vandita Trivedi, we are finding no merit and substance in the appeal filed for enhancement by Ms.Krishna Singh. Thus, her appeal against the judgement and award will have to be dismissed while allowing the appeal preferred by Ms.Vandita Trivedi. Hence, we pass the following order:
O R D E R
(i) Appeal No.9/2008 filed by Ms.Vandita Trivedi, Advocate is hereby allowed.
(ii) Judgement and award passed by the District Forum in Consumer Complaint No.136/2007 is quashed and set aside. The Complaint No.136/2007 stands dismissed. Likewise, appeal filed by Ms.Krishna Singh being Appeal No.163/2008 stands dismissed.
(iii) No order as to costs.
Pronounced on 29th March, 2011.
[Hon'ble Mr. P.N. Kashalkar] PRESIDING MEMBER [Hon'ble Mr. Dhanraj Khamatkar] Member ep