State Consumer Disputes Redressal Commission
Subhasish Basak,P.O.Arjunpur, ... vs Ms.Panchali Uppala ( Nee ... on 23 May, 2014
BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD F.A.No.250/2013 against C.C.No.35/2012, Dist.Forum-1,Visakhapatnam. Between: 1.Subhasish Basak, S/o.Sri Asish Kumar Basak address (present) : C/o.Sri Amitava Bhattacharjee, NC-42/1, Arjunpur (North), Jorapukur, P.O.Arjunpur, Kolkata 700 059 (W.B.) 2.Sri Ashish Kumar Basak, S/o. Late Murari Mohan Basak, C/o.Sri Amitava Bhattacharjee, NC-42/1, Arjunpur (North)_, Jorapukur, P.O.Arjunpur, Kolkoata 700 059 (W.B.) 3. Smt Sunita Basak, W/o.Sri Asish Kumar Basak, C/o.Sri Amitava Bhattacharjee, NC-42/1, Arjunpur (North)_, Jorapukur, P.O.Arjunpur, Kolkoata 700 059 (W.B.) Appellants/ Complainants And Ms.Panchali Uppala ( nee Bandyopadhyay) Advocate, AP Bar Council Enrollment # AP/235-A/1980, Address (Present): S-5, 3 rd floor, Meher Apartment, CBM Compound , VIP Road, Visakhapatnam 530 003 (A.P.). Respondent/ Opp.party Counsel for the Appellant : Party in person Counsel for the respondent : M/s.V.Gowrisankar Rao QUORUM: HONBLE SRI JUSTICE GOPALAKRISHNA TAMADA, PRESIDENT, SRI T.ASHOK KUMAR, HONBLE MEMBER, AND SRI S.BHUJANGA RAO, HONBLE MEMBER.
FRIDAY, THE TWENTY THIRD DAY OF MAY, TWO THOUSAND FOURTEEN.
Oral Order: (Per Sri S.Bhujanga Rao, Honble Member) *** This appeal is directed against the order dt.8.10.2012 of the District Forum-1, Visakhapatnam, made in C.C.No.35/2012, whereunder, the District Forum partly allowed the complaint filed by the appellants/complainants.
The appellants/complainants filed the Consumer Complaint in C.C.No.35/2012 against the respondent/opposite party seeking direction to the opposite party to refund entire amount of Rs.37,800/-, which was received by her from the appellants, to furnish account statement maintained by the opp.party for the remaining entrusted money of Rs.32,000/- after debiting such of the reasonable legal fees/expenses , as fixed by law, to pay a sum of Rs.10,000/- or more as compensation caused for the mental agony suffered by the appellants/complainant and to pay Rs.10,000/- or more towards litigation expenses.
For the sake of convenience, the parties are described as arrayed in the complaint .
The brief case of the complainants as set out in the complaint is as follows:
The opposite party is a practicing advocate at Visakhapatnam. When the complainants were the residents of Visakhapatnam, they approached the opposite party in the month of December,2009 seeking legal advise/opinion arising out of some marital discord between the complainant no.1 and his wife. They engaged the opposite party and filed a petition in Criminal M.P.No.58/2010 in Metropolitan Sessions Court, Visakhapatnam, seeking anticipatory bail in an unregistered case, on or around 22.12.2009 and they were granted anticipatory bail by the Court , with a condition that they should not leave the jurisdiction of the Court. Later, on 03.03.2010 complainant no.1 got filed O.P.No.288/2010 on the file of Family Court, Visakhapatnam, for judicial separation, under Sec.10 of Hindu Marriage Act. At the time of signing the Vakalatnama, the respondent/opp.party, after collecting information regarding the dispute, asked them to entrust an amount of Rs.30,000/- as deposit money by cash to the opposite party, towards the legal fees/expenses etc. for the above said two matters. After negotiations, when the opposite party did not reduce the said amount, the complainants deposited the said amount on 15.12.2009.
When the complainants insisted for a receipt for the payment of Rs.30,000/-, the opp.party asked them to collect the receipt within one or two days. But the opp.party did not pass any receipt, for the said amount of Rs.30,000/- and postponed the same on lame excuses.
The further case of the complainants is that the opposite party falsely informed them that the Sessions Judge while granting bail directed to deposit an amount of Rs.37,800/-
for fulfilling the conditions imposed, while granting anticipatory bail. The complainants deposited the said amount in two instalments i.e. Rs.20,000/- on 01.02.2010 and Rs.17,800/- on 02.02.2010 into opposite partys SBI Savings Account. Inspite of repeated requests, the opposite party failed to give the copy of the deposit receipt for the said amount, on the other hand threatened and abused them that she would implicate them in false cases. At the request of the opposite party, a further sum of Rs.2000/- towards legal expenses was credited to the account of the opposite party. Subsequently, the matrimonial O.P.288/2010 was transferred from the file of Family Court, VisakhapatnamII to the file of District Judges Court, Alipore, Kolkata (WB) and is now pending there. Inspite of addressing two letters, demanding for accounting for the amounts paid, and also to furnish copies of receipts etc., the opp.party failed to furnish the same, nor did she choose to give any reply. This amounts to gross deficiency in service, on the part of the opposite party. Hence the complaint.
Resisting the complaint, the opposite party filed counter denying the material allegations made in the complaint. While admitting the fact that she accepted brief from the complainants, the opp.party contended that at the request of the complainant she filed anticipatory bail application in Criminal M.P.58/2010 and obtained anticipatory bail order dt.22.01.2010 and immediately, she supplied the copy of the same to the complainants as they were under threat of arrest by the police. On the request of the complainants, the opposite party filed another application before the Metropolitan Sessions Judge for relaxation of condition imposed by the Court while granting anticipatory bail and the same was allowed. Thereafter, on behalf of the complainants, this opp.party filed application for judicial separation in O.P.No.288/2010, on the file of Family Court, Visakhapatnam. During pendency of this application, the opposite party instructed to file several applications , which she complied. The opposite party appeared in the matter till the case was transferred to Kolkata. The opp.party claimed that she represented the complainants diligently in all the matters and there is no deficiency in service on her part in prosecuting the above stated matters.
The opp.party further contended that the fixation of payment of legal fee or the rate of the legal fees payable for the professional services rendered is not within the ambit and scope of the Consumer Protection Act. Therefore, the plea of the complainants for refund of the fees is not sustainable under law. Therefore, the question of refund of fee does not arise, more so, in view of the fact that the complainant availed the services of the opp.party successfully. The opp.party never demanded the complainants to pay Rs.30,000/- nor the complainants paid the said amount on 15.12.2009. There was never any demand for receipt for Rs.30,000/-. This opp.party demanded the legal fees for filing and obtaining the anticipatory bails on behalf of the complainants and for filing application for relaxation of conditions and also for filing petition for judicial separation in O.P.No.288/2010. The complainants have paid only Rs.37,800/- through bank. Absolutely there is no deficiency in service and the complaint is to be dismissed with costs.
During the course of enquiry, before the District Forum, both parties filed evidence affidavits, in support of their respective contentions and the complainants got marked Exs.A1 to A6 and the opp.party got marked Exs.B1 and B2 .
Having heard the complainants, in person and the counsel for the opp.party and having considered the evidence on record, the District Forum came to the conclusion that there is deficiency in service on the part of the opp.party and allowed the complaint, in part, directing the opp.party, to pay a compensation of Rs.7,500/- to the complainants within 30 days, failing which, to pay the same with 9% interest from the date of the order, till the date of payment, besides costs of Rs.3,500/-.
Not satisfied with the order of the District Forum, the complainants, parties in person, filed the above appeal, urging that the District Forum in para 12 of its order erroneously held that the complainants are not entitled to seek any refund from the opposite party, by reason of the erroneous and non speaking conclusion drawn in para 10 of the order that the fixation of fees for the services rendered by advocate to the client and its justification is beyond the purview of the District Forum under the Consumer Protection Act. It is well settled position in law that by virtue of Sec.3 of C.P.Act, the remedies available under C.P. Act are in addition to and not in derogation of the provisions of any other laws, for the time being in force.
That special feature of an advocate playing the role of an officer or friend of Court, has not been considered to be a bar against suing the advocate either in this country, or elsewhere. There are no compelling reasons, to read down the definition of Service, so as to exclude the legal practitioners from the purview of Consumer Protection Act.
That the District Forum erred in law to ignore several B.C.I.(Bar Council of India) Rules, which are applicable in this case, particularly the rules 11, 12, 24, 25, 26, 27, 28, 29, 30, which have been defied/violated by the respondent advocate and therefore it manifestly amounted to gross deficiency in service and/or unfair trade practice and/or exploitation of consumer on several counts, on the part of the respondent.
The District Forum erred in holding that there is not much dispute with regard to the third amount of Rs.2,000/- by misappreciation of facts, as narrated in the para 20 of the Evidence Affidavit filed by the complainants. The District Forum failed to see that the complainants made to pay a sum of Rs.2000/- to the opp.party, on her representation that publication in news paper to be issued in O.P.No.288/2010 as the summons were not served on the respondent therein.
That the District Forum erroneously held that the amount of Rs.37,800/- was collected by the opposite party for filing application for judicial separation on behalf of the 1st complainant. That the District Forum failed to consider that the respondent advocate deliberately committed default to return the complete brief/documents and/or to complete account statement amounted to unfair trade practice, in addition to deficiency in service.
The appellants finally prayed to pass appropriate orders modifying the order of the District Forum by enhancing the amount of compensation and directing the respondent advocate to furnish account statement with full particulars for all the amounts paid to her and to return the complete brief/documents etc. The appellants did not appear to advance their arguments in this appeal. However, they sent a letter praying this Commission to dispose of the appeal on merits and on the grounds mentioned in the appeal. We heard the counsel for the respondent and perused the material on record.
Now the point for consideration is whether the impugned order of the District Forum is vitiated for misappreciation of fact or law?
This is a dispute between the clients and their advocate, wherein, allegations of gross professional and financial irregularity, on the part of the advocate were made. As can be seen from the pleadings and documents filed by both the parties, the appellants/complainants admittedly engaged the respondent/opp.party, to file application on behalf of the appellants for anticipatory bail. It is also not in dispute that the opp.party on behalf of the three complainants filed Criminal M.P.No.58/2010 on the file of Metropolitan Session Judge,Visakhapatnam, for grant of anticipatory bail, for the offence u/s.498 A of I.P.C. in an unregistered crime and the Court passed an order on 22.12.2009 granting anticipatory bail on their executing personal bond for Rs.10,000/- each, with a further condition that they should not leave the jurisdiction of the Court, without permission, as is evident from Ex.A1 the copy of the anticipatory bail order. Undisputedly, the opposite party filed Criminal M.P.No.413/2010, on behalf of the complainants, for relaxation of condition imposed on them as to not to leave the jurisdiction of the Court and the application was allowed by order dt.03.03.2010. It is not in dispute that earlier to obtaining of anticipatory bail order, the opposite party has also filed application in O.P.No.288/2010, on the file of Family Court, Visakhapatnam against 1st complainants wife for judicial separation and that application, at a later stage was transferred at the instance of the 1st complainants wife to Kolkata Court.
It is the case of the appellants/complainants that on the demand made by the respondent/opposite party, they paid Rs.30,000/- to the opposite party, by cash towards legal fees/expenses on 15.12.2009 and that the opposite party did not furnish any receipt for the payment of Rs.30,000/- inspite of repeated requests. The opposite party denied to have received the amount of Rs.30,000/- from the complainant on 15.12.2009 towards legal expenses. She contended that no demand was made by the appellants for receipt, for the alleged payment of Rs.30,000/-.
It is true that except the statement in the complaint and in the evidence affidavit, filed by the complainants, the appellants/complainants have not filed any recorded evidence to prove that they paid Rs.30,000/- to the respondent/opp.party on 15.12.2009 towards legal fee/expenses. The case of the complainants is that they sent the original of Ex.A6 letter dt.12.05.2011 and later the original of Ex.A4 the second reminder letter dt.11.07.2011 to the opposite party. Ex.A5 is the copies of the postal receipts and the postal acknowledgement of the opposite party. It is not the case of the opp.party that she did not receive the originals of Exs.A4 and A6 letters. Ex.A5 proved that the opp.party has received the letters.
In both the letters, the appellants/complainants asserted that they have paid Rs.30,000/- to the opposite party on 15.12.2009, towards legal fees/expenses. Admittedly, the opposite party did not give any answer to Exs.A4 and A5 letters. Had the opp.party not received Rs.30,000/- from the complainants, as a prudent person, she would have given reply immediately to the said letters denying the assertion of the appellants. Therefore, an adverse inference has to be drawn against the opp.party to the effect that because she received Rs.30,000/- from the complainants, she did not give any reply to Ex.A4 and A5 letters, denying the payment of Rs.30,000/-.
Further, admittedly, there is no relationship of whatever nature between the complainants and the opp.party, except they belong to Kolkata . It is not the case of the opp.party that the appellants are her standing clients. In view of these admitted facts, the contention of the respondent/opposite party that she moved anticipatory bail application for the appellants/complainants and also filed an application for restitution of conjugal rights, without collecting any fee, in our view, is unbelievable.
Under these circumstances, it is quite evident that only after receiving Rs.30,000/-, the opposite party moved the Court seeking anticipatory bail on behalf of her clients i.e. the appellants herein.
The further case of the appellants/complainants is that on or around 22.01.2010, they were informed by the opposite party that while granting anticipatory bail, the Sessions Judge imposed a condition of depositing Rs.37,800/- in the Sessions Court and after depositing the said amount, the orders will be issued. Then the appellants/complainants gave Rs.37,800/- to the respondent/opp.party, through bank Rs.20,000/- and the remaining balance of Rs.17,800/- was on 02.02.2010, for the purpose of depositing the said amount in the Sessions Court for fulfilling the condition, but the respondent/opp.party did not pass any receipt in favour of the appellants/complainants, though it is her professional duty to give such receipt immediately .
The respondent/opposite party denied the alleged representation said to have been made by the opp.party to the complainants, but admitted the receipt of Rs.37,800/- from the complainants. The opp.party contends that the amount was paid towards court fees/other expenses, to conduct both the cases i.e. anticipatory bail application and restitution of conjugal rights. Except the interested statement of the appellants/complainants, in the complaint and in the evidence affidavit , there is no convincing and cogent evidence adduced by the appellants to prove the alleged representation made by the opp.party. Basing on the circumstances of the case, it cannot be presumed that the respondent/opp.party made such false representation to the appellants/complainants. The appellants/complainants are therefore failed to prove that on the wrong representations made by the respondent/opp.party, they gave Rs.37,800/- to the opposite party, in order to deposit the same, to fulfil the condition imposed by the Sessions Court, while granting anticipatory bail. However, the respondent/opp.party failed in her duty to pass on a receipt for the amount of Rs.37,800/-
received by her, from the appellants/complainants.
Now coming to the third payment of Rs.2000/- , the case of the appellants/complainants is that they have also paid Rs.2000/- to the respondent/opp.party towards legal expenses. The respondent/opp.party admitted the payment of Rs.2000/- by the appellants/complainants , but contended that the said amount was paid by the appellants/complainants to meet the expenditure for publication to be made in the O.P. for restitution of conjugal rights filed by the complainant no.1, as the notice issued by the Court was not served on the wife of the complainant no.1. The District Forum accepted the contention of the opp.party relying on Ex.B2 a paper containing the addresses of some news papers, which are under circulation in Kolkata City, furnished by the appellants/complainants to the respondent/opp.party.
The appellants/complainants, under Ground 5 (c) of the appeal grounds at page 5, have submitted that the statement of the respondent/opp.party in para 6 of her affidavit that the complainants paid a sum of Rs.2000/- for the purpose of making publication in news paper as the summons issued in O.P.No.288/2010 were not served on the respondent therein is false, since the said amount of Rs.2000/- was paid to her through bank only on 05.1.2011 whereas, the respondent in O.P.No.288/2010 had already entered appearance on 15.12.2010 in that case, after duly receiving court summons/notice in that case. The respondent/opposite party has not taken the plea that the appellants/complainants gave her Rs.2000/- for the purpose of making publication in news paper in O.P.No.288/2010, in her written version, but she has taken the said plea in her evidence affidavit. The respondent/opp.party has not denied the statement of the appellants/complainants in their evidence affidavit that the respondent in O.P.No.288/2010 had already entered appearance on 15.12.2010 in that matter, in her evidence affidavit. In view of the contention of the appellants/complainants, the opp.party ought to have filed the copy of the newspaper, in which the publication was made, for the appearance of the respondent in O.P.No.288/2010, to disprove the contention of the appellants that the respondent in O.P.No.288/2010 had entered his appearance in that matter prior to the payment of Rs.2000/- by the appellants/complainants. Ex.B2 letter was given by the appellants/complainants providing some names and addresses of local news papers in Kolkata. Ex.B2 letter does not contain date of its issue. The contention of the appellants/complainants is that they gave Ex.B2 letter at the request of the opp.party for ready reference, if at all, its need arises at future date. Under these circumstances, basing on Ex.B2 letter, it cannot be held that the respondent/opp.party got issued publication in any news paper for the purpose of service of notice on the respondent in O.P.No.288/2010, especially when it is possible for the respondent to produce the news paper in which the publication was made or atleast the details i.e. date of issue of the publication and the name of the newspaper, but she did not do so.
Under these circumstances, we have no option except to accept the contention of the appellants/complainants that they have paid this amount to the opposite party, at her instance and not towards publication expenses. Admittedly, the respondent/opposite party has not accounted for the third entrusted amount of Rs.2000/-. In view of the contention of the opposite party and as she failed to prove her contention, she is liable to refund the same to the appellants/complainants .
So far as the amounts of Rs.30,000/-
and Rs.37,800/-, both the amounts are proved to be paid by the appellants/complainants to the opp.party towards court fees, advocate fees and other expenses for prosecuting both the matters i.e. anticipatory bail application etc. and the application for restitution of conjugal rights in O.P.No.288/2010, on behalf of the appellants. As rightly observed by the District Forum, neither party came up with any specific case, as to whether there is any fixation of amount towards fee or expenses. Even if such information is available, as rightly contended by the counsel for the opp.party, the Consumer For a, under the Consumer Protection Act, have no jurisdiction to decide the issue of professional fees payable to a professional and to decide the rates fixed and demanded by a trader or a professional. It is true that it is well settled preposition in law that by virtue of Sec.3 of Consumer Protection Act, the provisions/remedy available in the C.P.Act are in addition and not in derogation of the provisions of any other law/remedy for the time being in force. In our considered view, fixation of fee by way of agreement between the advocate and his/her client does not come under the service of an advocate. The advocate fee has to be fixed by the client and the advocate, as per rules and the fixation of advocates fee does not come under service as defined under C.P.Act. Therefore, the Dist. Fora have no jurisdiction to order refund of the fee paid by the client to the advocate. The District Forum is therefore justified in not ordering refund of the two amounts i.e. Rs.30,000/- and Rs.37,800/- by the opp.party to the complainants.
Under the provisions of Consumer Protection Act, the Consumer Fora have jurisdiction to decide an issue whether there is any deficiency in service on the part of the advocate, in discharging his duties and whether compensation for monetary loss sustained by the client on account of dishonest act and conscious breach of obligation, on the part of the advocate, can be awarded, if so to what extent. Under these circumstances, the complaint filed by the appellants/complainants is rightly entertained by the District Forum, keeping in view Sec.3 and other provisions of the Consumer Protection Act.
As rightly observed by the District Forum , it cannot be ignored that an advocate has got legal obligation to explain his client the pros and cons of the litigation and the expenditure involved therein and further he has got a duty to account for his client the monies received from him, other than advocate fees. But evidently, the opp.party failed in her duties to account for the amounts received by her to meet the legal expenses in both the cases, inspite of registered notices got issued by the appellants/complainants. The opposite party did not even offer explanation for her failure to give reply to the notices. It is unfortunate that the opp.party failed to respond to her clients queries, inspite of the fact that she has got legal obligation to do so.
This failure to furnish necessary information and account for the monies received by her from her clients, in our view, amounts to deficiency in service on the part of the opposite party.
It is an admitted fact that the appellants/complainants submitted a complaint with the Bar Council of the State of Andhra Pradesh against the respondent/opp.party. The counsel for the respondent/opp.party filed a memo along with the copy of the proceedings of the Bar council of State of Andhra Pradesh in R.O.C.DC.553/2013, dt. 1.8.2013, whereunder, the Bar Council considered the complaint and resolved to reject the complaint, as no primafacie case is made out. A detailed order of the Bar Council is not filed. However, in our considered view, the order of the Bar Council of the State of Andhra Pradesh is not binding on Consumer Fora constituted under the Consumer Protection Act. The Bar Council has no jurisdiction to grant reliefs, which the Consumer Fora can grant under the provisions of Consumer Protection Act. Under these circumstances, we have not taken the order of the Bar Council of State of A.P. into consideration while deciding the appeal .
Having regard to the aforesaid facts and circumstances of the case and the liability of the opposite party to refund Rs.2000/- to the appellants/complainants, the compensation of Rs.7,500/- awarded by the District Forum to the complainant is in-sufficient and we are inclined to enhance the compensation from Rs.7,500/- to Rs.15,000/- (including Rs.2000/-) with interest as ordered by the District Forum.
In the result, the appeal is allowed in part, directing the respondent/opp.party to pay Rs.15,000/- ( which includes Rs.7,500/- awarded by the District Forum), to the complainant towards compensation. The impugned order of the District Forum is accordingly modified , retaining the remaining portion of the order as it is. The respondent/opposite party is directed to pay a sum of Rs.5,000/- to the appellants/complainant towards costs of this appeal. The respondent/opp.party is directed to comply with the order within four weeks from the date of this order.
PRESIDENT MEMBER MEMBER Pm* Dt. 23.5.2014