V.P. KOCHAGASTY vs P. KUMARANKUTTY

In this revision petition the petitioner-complainant has taken exception to dismissal of his Appeal No.243 of 2015 by the State Commission, Kerala.

Briefly put, facts relevant for the disposal of the revision petition are that the petitioner filed a consumer complaint alleging that he was cheated by one Mr. C. Sethunath in a deal pertaining to purchase of a house. The petitioner-complainant, therefore, approached the respondent-advocate for approaching the court. It is the case of the petitioner that the opposite party after discussing the matter with the complainant suggested filing of a criminal complaint under Section 420 of the IPC against Mr. C. Sethunath and assured him hundred percent success in the complaint. The petitioner-complainant having been convinced by the assurance given by the opposite party engaged him and paid a sum of Rs.7,000/- as lawyer''s fee. The opposite party filed a criminal complaint under Section 420 IPC which, however, was dismissed after six months for the reason that the dispute raised in the complaint was of civil nature. The complainant, thereafter, asked the opposite party to refund the money but in vain. Claiming above to be deficiency in service on the part of the opposite party the petitioner-complainant raised a consumer dispute before the concerned consumer forum.

The District Forum on consideration of pleadings of the parties was of the view that there was no deficiency on the part of the opposite party. The complaint was, accordingly, dismissed. The complainant being aggrieved of the order of the District Forum approached the State Commission, Kerala in appeal. The State Commission, however, concurred with the finding of the District Forum and dismissed the appeal in limine with following observations:

"Admittedly, the respondent was the lawyer entrusted by the appellant to file complaint before the Judicial First Class Magistrate Court, Koyilandy under Section 420 IPC in relation to a house purchase transaction. It appears from evidence that in fact the opposite party had advised the appellant to better opt for civil suit and it was at the insistence of the appellant the advocate was forced to file complaint before the magistrate court. It was in the discretion of the judicial first class magistrate concerned to conduct enquiry by himself or to refer the case for enquiry by police and the learned magistrate ordered enquiry by police. Based on the report of the police the complaint was closed. There is absolutely no allegation in the complaint against the respondent that there was any defect in the drafting of the criminal complaint or that he had failed to appear and prosecute the case to best of his ability. The consumer forum also found that the evidence indicated that the appellant was consulted by the advocate at the various stages of the case. At the same time during examination of the appellant it was revealed that he had suppressed filing of a civil case based on the same cause of action and another consumer complaint. Both were allowed in his favour. There is also nothing to indicate that the respondent demanded and was paid more than agreed fees. In short, there is nothing prima facie to admit the appeal for hearing. Hence, the appeal is dismissed in limine.

Being aggrieved of the order of the State Commission the petitioner filed revision petition by post wherein he took the plea that he is a senior citizen aged 73 years suffering from age old ailments restricting his movements. Therefore, the petitioner sought an exemption from personal appearance and pleaded that he was not in a position to engage a lawyer because of financial crunch. In view of the said request, Ms. Sheena Piplani, Advocate was appointed amicus curiae to present the case of the petitioner. However, Sheena Piplani sought discharge on the ground that she has relocated herself in another city. Therefore, Mr. Abhishek Kumar Gola, Advocate was appointed amicus curiae to represent the case of the petitioner.

Learned amicus curiae has submitted that impugned orders of the fora below are based upon incorrect appreciation of the law and the facts. It is contended that both the fora below have failed to appreciate that the services of the opposite party were hired by the complainants for consideration and the respondent-advocate failed to give proper service in giving a wrong advice with hundred percent assurance of success to file a criminal complaint under Section 420 IPC which amounts to deficiency in service.

We are not convinced with the submissions made by the amicus curiae. The revisional jurisdiction of the National Commission flows from Section 21(b) of the Consumer Protection Act, 1986 and it can be assumed only if the fora below have exceeded its jurisdiction or failed to exercise the jurisdiction vested in it or there is some material infirmity in the finding of the fora below. In the instant case there is no jurisdictional error pointed out by learned amicus curiae. So far as finding on merit is concerned both the fora below have returned concurrent finding of facts based upon appreciation of evidence by reasoned orders. It is well settled that in exercise of the revisional jurisdiction the revisional court is not supposed to re-appreciate the evidence unless there is some material infirmity. On careful consideration of the impugned order we do not find any fault with the reasoning adopted by the State Commission which may call for interference in exercise of revisional jurisdiction.

In view of the discussion above we do not find any reason to interfere with the concurrent finding of the fora below in exercise of revisional jurisdiction. Revision petition is, accordingly, dismissed.