KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACAUD THIRUVANANTHAPURAM

APPEAL NO.641/2013

JUDGMENT DATED : 31.10.2014

(Appeal filed against the order in CC.No.215/2011 on the file of CDRF, Kottayam order dated : 12.08.2013)

PRESENT

SRI.K.CHANDRADAS NADAR              : JUDICIAL MEMBER

Mukundan.P.A

Cherumuttath,

Padinjarethil,

Neendoor.P.O                                                     APPELLANT

Kottayam – 686 601

(By Adv.Sri.Girish.R)

VS.

K.Vinodkumar,

Advocate,

Surya, Ettumanoor.P.O

Kottayam – 686 663                                            RESPONDENT

(By Adv.Sri.K.P.Jayaraj &

By Adv.Sri.Krishnakumar)

JUDGMENT

SRI.K.CHANDRADAS NADAR            : JUDICIAL MEMBER

            The appellant was the complainant in CC.No.215/2011 in the CDRF, Kottayam. He alleged in the complaint that he was the defendant in OS.No.229/2009 in the Munsiff’s Court, Ettumannor which was a suit for permanent injunction filed by one Vijayakumari against him. On receipt of summons and order of temporary injunction, the complainant approached the opposite party a lawyer at Ettumanoor to conduct the case on his behalf. The complainant paid Rs.25, 000/- to the opposite party as advocate fees but the opposite party did not conduct the case properly. Due to delay and the negligent manner in which the case was conducted, the plaintiff in the suit, Vijayakumari took the yield from the plantains cultivated by the complainant. As a result, he sustained loss of Rs.50,000/-. Hence the complainant wanted direction to the opposite party to refund Rs.25,000/- which the opposite party received as advocate fees and claimed costs of the proceedings.

            2.        The respondent / opp.party contended before the Consumer Forum that there was no deficiency in service on his part. He admitted that he was the advocate of the complainant in the suit filed against him before the Munsifff’s Court, Ettumanoor. He contended that on 07.11.2009 the suit was filed and the plaintiff therein obtained order of injunction against the complainant. The case was posted on 21.11.2009. The complainant entrusted the case with him and he appeared for the complainant in the Munsiff’s Court, Ettumannor on 21.11.2009 itself. On the same day objection was filed in the application for injunction. He had advised the complainant to file counter claim to which suggestion the complainant agreed and requested time for arranging money for remitting court fees. But on 05.01.2010 the complainant approached the opp.party and told him that he had taken yield from the plantain cultivation and did not want to proceed with the case. He requested the opp.party to return the case bundle and the complainant left his office with the case bundle. But half an hour afterwards the complainant returned and demanded letter relinquishing vakalth. The opp.party relinquished the vakalath of the complainant on 05.01.2010 before filing the written statement. The complainant subsequently conducted OS.NO.229/2009 through another advocate.  The complainant had approached the Bar council of Kerala against the opposite party and the matter is pending. The opp.party further contended that he was paid only Rs.500/- as advocate fees and Rs.150/- towards clerical expenses. There was no deficiency in service on his part.

            3. Before the Consumer Forum parties filed proof affidavit. On the side of the complainant certified copy of B Diary in OS.No.229/2009 was produced and marked as Ext.A1. On the side of the opposite party Exts.B1 to B16 were marked. The Consumer Forum finding no deficiency in service on the part of the opposite party dismissed the complaint. Hence the appeal. The only question that arises for consideration is whether the appellant is entitled to succeed.

            4.        According to the complainant/ appellant, the respondent failed to defend OS.No.229/2009 instituted by one Vijayakumari in the Munsifff’s Court, Ettumanoor against hi