Daisy Antony v. Sojan G Kunnel

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through the complainant's account in Federal Bank, Chittarickal Brach to opposite party's account and some payments were done from complainant's son Athul Devin's account to opposite party's account. In addition to this, opposite party had collected Rs. 15,000/- from the complainant by promising to quash the aforesaid two criminal cases in High Court. The opposite party had received an amount of Rs. 5,000/- in cash from complainant to obtain a stay order in a civil dispute from the court in 1.92 acres of land located in Tayannur village with survey No. 430/1 pt 471 of the complainant. But no stay order has been obtained from the court so far. In the meanwhile Vellarikund Police came to arrest the complainant on 22/02/2022, then only she came to know that the opposite party is not paying any attention to the complainant's cases. When the complainant tried to contact opposite party over, phone, opposite party was not ready to pick up the call. The complainant later sent a voice message to opposite party, after some time, opposite party sent a voice message directing her to appear before the court on 24/05/2022. When the police came to arrest her, the complainant informed that opposite party has obtained bail from High Court and contesting the cases and both the criminal cases had been quashed in the High Court. The police told her to hand over the cases anyone else. The police did not arrested her as she was a woman and she agreed to appear before the court on the next day. The complainant alleges deficiency in service on the part of opposite party, as he cheated her after collecting a huge amount of money as fee from her. As per the instructions of opposite party, Advocate Dilish who was with the opposite party was assigned to conduct both the criminal cases. The complainant came to know that Advocate Dilish did not give the money saying that it was to be given to opposite party. On 24/05/2022, the complainant appeared before the court and recalled warrant after obtaining No Objection from Advocate Dilish. If the Vellarikund Police had arrested the complainant, the complainant's

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family would not have been able to survive the shame that would have been caused. If anything like that had happened, the complainant and her family would have had to commit suicide. The opposite party caused severe mental agony, financial loss and emotional insult to the complainant by cheating her after receiving money from her. Therefore the complainant is seeking a direction against opposite party to refund the collected amount of Rs. 43,500/- with a compensation of Rs. 1,00,000/- from opposite party.

The opposite party filed version stating that the complaint is false, frivolous and filed with ulterior motives of making unlawful gain for the complainant and hence the same is not maintainable. The opposite party admitted that the complainant is accused in CC No. 59/2020 on the file of JFCM II Court Hosdurg. And it is also admitted that opposite party was appearing for the complainant, herein in aforesaid case. It is also admitted that opposite party had secured bail for the complainant from the Hon'ble High Court of Kerala in the aforesaid case. The allegation of the complainant that opposite party has collected a huge amount of money towards his fee is denied as it is false and opposed to facts. The allegation that opposite party has arranged one Advocate Dilish for complainant to appear in CC No. 1073/2019 on the fil of JFCM II Hosdurg. The further allegation that opposite party had agreed to obtain stay for dispute relating to property compressed in RS No. 430/1 PT 471 of Tayannur Village measuring a extend of 1.92 acre and obtained Rs. 5,000/- is denied here as false and incorrect. Further allegation that Vellarikund Police has approached the complainant to arrest in a case wherein opposite party is appearing for the complainant is denied. Opposite party submitted that no warrant was issued to the complainant in a case where in opposite party was appearing for the complainant. The opposite party further submits that, he is a practicing lawyer and gained good reputation in society. The opposite party further submits that he was

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appeared and conducted the cases CC 59/2020 on the file of JFCM II Hosdurg for the complainant, till opposite party relinquished his vakalath in aforesaid case no arrest warrant is issued against the complainant, moreover opposite party had secured bail to the complainant in aforesaid case from Honorable High Court of Kerala. The opposite party has not committed any deficiency in service in conducting the case of the complainant. It is further submitted that the relationship between counsel and client not coming under the purview of consumer dispute and this commission has no jurisdiction to try this complaint. Hence the complaint may be dismissed with compensatory cost.

The complainant filed proof affidavit in lieu of chief examination and Ext. A1 series produced. The opposite party was not cross examined the complainant after several chances. Hence it is posted for hearing. Thereafter opposite party filed IA 102/2024 to reopen the evidence and recall PW1. IA allowed, but there after opposite party's council has not taken any steps to cross examine the complainant. Heard the complainant. The issues raised for consideration are;

1) Whether the complaint is maintainable?

2) Whether there is deficiency in service on the part of opposite party?

3) Whether the complainant is entitled for relief? If so, what is the relief?

For convenience, all points can be discussed together. In this case, the complainant hired the service of opposite party to contest her cases and to obtain bail from High Court. She paid consideration as demanded by opposite party, thereafter also she paid a total amount of Rs. 73,500/- as fee for contesting her cases. The complainant's grievance is that even after paying a huge amount as fee to opposite party, he had not taken care to fulfill his promises to her.

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The Supreme Court in a case Bar of India Lawyers V/s D K Gandhi held that the advocates cannot be held liable under Consumer Protection Act for alleged deficiency in service. The court also highlighted that the legal profession has its own specialized regulatory bodies (Bar Counsels) that oversee professional contact and handle complaints. While advocates are expected to provide competent ethical services, there relationship with clients particularly the clients control over services, places them outside the scope of CP Act. The legal profession is a noble profession and not a business or trade, sui generis, that is, unique in nature and cannot be compared with any other profession. A service hired or availed of an advocate is a service under "a contract of personal service", and therefore would fall within the exclusionary part of the definition of service contained in section 2(42) of CP Act 2019. A complaint alleging deficiency in service against an advocate practicing legal profession would not be maintainable under CP Act 2019.

In the light of the aforementioned discussions, the above complaint is dismissed with no order as to cost, as the first point is found not maintainable. The complainant is at liberty to approach proper bodies to seek redressal of her grievance.

Sd/- Sd/-

MEMBER PRESIDENT

Exhibits

A1 series - Statement of record Sd/- Sd/-

MEMBER PRESIDENT

Forwarded by Order Assistant Registrar JJ/