O R D E R.
By Sri. Ananthakrishnan. P.S, President:
This is a complaint filed under section 12 of the Consumer Protection Act, 1986.
2. The Complainant’s case in brief is as follows :- The Opposite Party is an advocate practicing at Sulthan Bathery. The Complainants are brothers. They are the owners of 4 ¼ acres of property at Puthoor. Wild elephants had entered into this property and caused damages to their 2000 areca nut trees. Therefore, they contacted Opposite Party to file compensation suit for Rs.30,00,000/- at the rate of Rs.1,500/- per each areca nut tree. The Opposite Party promised that they will get at least Rs.30,00,000/- as compensation from Government. Thus, Complainant entrusted the Opposite Party to file the compensation suit. They have given Rs.15,000/- to the Opposite party towards court fee and Advocate fees. The Opposite Party directed them to pay the balance of his fees at the rate of 10% on the amount to be decreed. Then, he obtained their signatures in vakkalath and blanked papers. Thereafter, they were informed by the Opposite party about the filing of the case and he demanded Rs.3,000/- towards the commission batta to Adv. Beena. Complainants have given the amount. Thereafter, elephants again entered into their property and caused damages to other areca nut trees. So that, they contacted the Forest Officials to file application for compensation. Only then, they realised that the Opposite Party had not filed any compensation case. On enquiry, the complainant also realised that the Opposite Party filed only an injunction suit as O.S 151/2016 before Munsiff Court, Sulthan Bathery. When asked, the Opposite Party misbehaved towards them. The Complainants had entrusted the Opposite Party to file only a compensation suit. Even then, he filed injunction suit with an intention to grab money from them. Thus, the Opposite Party caused monetary loss to them. So there is deficiency in his service. Thus the Complainants are entitled to get Rs.15,00,000/- each from the Opposite Party as compensation. But, they restricted the amount and demanded only for Rs.2,00,000/- each.
3. The Opposite Party filed version contenting as follows. He admitted that the Complainants had entrusted him to file civil suit before the Munsiff Court, Sulthan Batahery. But, he denied that they have entrusted him to file compensation suit for Rs.30,00,000/-. The Complainants entrusted him only to file injunction suit to assess the value of loss caused by the elephants to their areca nut trees. He informed the complainants to avoid the excess monetary loss that they can convert the injunction suit into a compensation suit when the Commissioner assessed the value of the compensation. He denied that the Complainants gave Rs. 15,000/- to him towards court fee and Advocate fees. The Complainants have only gave Rs. 2,000/- towards the expenses. So that, he had filed injunction suit as OS 151/2016. They never asked the Opposite Party to convert the injunction suit into a compensation suit. After the inspection of the Commissioner, he informed the complainants about the need of converting the suit. They never entrusted the required court fee also to file compensatory suit. He denied that he had intention to grab money from the complainants. This allegation leads mental pain to him and Complainants thus defamed him. So, they have to withdraw this statement. He denied that there is deficiency in his service and so, Complainants are entitled to get Rs. 15,00,000/- as compensation from him. The Complainant is not entitled to get any compensation from him and thus complainant is to be dismissed with his cost.
4. On the above pleadings, the points to the considered here are :-
1. Whether there is any deficiency in the service of Opposite Party? If so,
Whether the complainants are entitled to get any compensation from him?
- Reliefs and costs.
5. The evidence in this case consists of oral testimony of PW1, OPW1 and
Exts. A1 to A12. Heard, both sides.
6. Point No.1:- The complainants alleged that they have entrusted the Opposite Party to file a suit for compensation for getting damages from the Kerala Government for the loss of their arecanut trees which were damaged by wild elephants. According to them, instead of filing compensation suit, the Opposite party filed injunction suit. Evidently, the Opposite Party had filed an injunction suit. According to the complainants, they never entrusted the Opposite Party to file an injunction suit. On the other hand, the Opposite Party contented that the complainants have entrusted him only to file an injunction suit and he informed them that when the commissioner assessed the value of damages, they can convert the injunction suit into a compensation suit. According to the Opposite Party, even after the report of the Commissioner, the Complainants have not given the required court fee to convert the injunction suit into compensation suit and that they strait away filed this complaint before this Commission without withdrawing the injunction suit. Therefore, he contended that even though, the Complainants have obtained sufficient time to convert the injunction suit into compensation suit, they have filed this complaint before this Commission alleging deficiency in his service and grabbed money from them.
7. To prove the case of the Complainants, the second Complainant has given evidence as PW1. The Opposite Party has given evidence as OPW1 to prove that this is only a false case. Exts.A1 to12 was marked from the side of the Complainants. Admittedly, the Complainants are the owners of the property and the elephants caused damages to their coconut trees. Exts.A2 to 5 is their title deeds and possession certificate . It is also evident that the Opposite Party had filed injunction suit for the purpose of restraining the Forest officials from removing the damaged arecanut trees from the property of the Complainants. Ext. A1 is the copy of O.S. 151/2016. It is also evident that one Adv. Beena inspected the property and noted the number of damaged trees. Exts.A9 is her Commission Report. The specific case of the Opposite Party is that after getting the Commission report, the Complainants ought to have converted the injunction suit into compensation suit.OPW1 deposed that Complainants have not requested him to convert the suit for compensation and have not given required court fee. He asserted that this is the reason for not converting the injunction suit into compensation suit. Even though, the Complainant’s case is that they entrusted the Opposite Party to file a compensation suit and they have given Rs.15,000/- towards the Advocate fees and court fee, there are no materials here to prove that the Complainants have entrusted Opposite Party to file such a suit. As I already stated, the case of the Opposite Party is that he has filed the injunction suit on instructions from the Complainants and the Complainants have not given required court fee to convert the injunction suit into compensation suit. We do admit that here also there is no direct evidence to prove this contentions also. But, here there is an admitted fact. During the pendency of injunction suit, the Complainants filed the complaint before this commission and even then, they have not sought the help of any other Advocate by changing the earlier vakkalath to convert the injunction suit into a suit for compensation. Instead, they withdrawn the injunction suit only thereafter. So, they had obtained sufficient time to convert the injunction suit into a compensation suit. If, their case is true, they should have taken steps to convert the suit as they wishes. The Complainants have no case that they have given required court to the Opposite Party and even then, he failed to convert injunction suit into compensation suit. As already stated, it is evident that the Complainants have withdrawn injunction suit only after they filed the complaint before this commission. Suppose, the Complainants filed this complaint before this commission only after the withdrawal of injunction suit alleging that the Opposite Party failed to convert injunction suit into a compensation suit, there is probability to hold that the case of the complainant is true. Therefore the materials available here would go to show that the case of the Opposite Party is more probable and thus, we have no hesitation to hold that the case of the Complainant is false. Therefore, we held that there is no deficiency in the service of Opposite Party and thus the complainants are not entitled to get compensation from the Opposite Party. So the point is answered against the Complainants.
8. Point No.2:- Since we found point No.1 against the Complainant, the Complainant is not entitled to get any relief.
In the result the complaint is dismissed, but without costs.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the open Commission on this the 26th day of March 2022.
Date of filing:09.02.2018.
PRESIDENT: Sd/-
MEMBER : Sd/-
MEMBER : Sd/-
APPENDIX.
Witnesses for the complainant:
PW1. Shaji T.J. 2nd Complainant.
Witness for the Opposite Party:
OPW1. Viji Varghese. Advocate.
Exhibits for the complainant:
A1. Copy of Complaint in O.S. 151/2016 dt:27.01.2016.
A2. Copy of Title deed. dt:20.04.1990.
A3. Copy of Title deed. dt:20.04.1990.
A4. Copy of Possession Certificate. dt:11.01.2016.
A5. Copy of Possession Certificate. dt:11.01.2016.
A6. Copy of Statement in OS 151/2016. dt:22.11.2016.
A7. Copy of Application dt:27.01.2016.
A8. Copy of Application. dt:27.01.2016.
A9. Copy of Commission Report.
A10. Copy of Sketch.
A11. Copy of Application.
A12. Copy of Application.
Exhibit for the Opposite Party:
Nil.
