Where two interpretations of evidence are possible, concurrent findings based on evidence have to be accepted

Surat Singh Rathi Vs Shiv Kumar & Anr. (NCDRC Delhi)

Conclusion: In present facts of the case, the NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI (NCDRC) observed that where two interpretations of evidence are possible, concurrent findings based on evidence have to be accepted and such findings cannot be substituted in revisional jurisdiction.

Facts: In present facts of the case, the revision petition was filed under section 21(b) of the Consumer Protection Act, 1986 which assails the order dated 26.10.2017 of the State Consumer Disputes Redressal Commission, Haryana, Panchkula dismissing the appeal of the petitioner against order dated 04.07.2016 of the District Consumer Disputes Redressal Forum, Sonepat in Consumer Complaint no. 295 of 2014.

The facts as per the petitioner was that the petitioner and one Advocate were engaged by the respondents for legal services in two Civil Suits instituted in 2011. Respondents filed a complaint before the District Forum for losses suffered by them due to deficiency in service as they had to engage a new counsel. Respondents also engaged the petitioner in Civil Misc. Appeal No. 55 of 2011 before the Additional District Judge, Sonepat on a pro bono On contest, the District Forum allowed the complaint and ordered payment of Rs.1,00,000/- for rendering deficient services and causing mental agony and harassment. The State Forum dismissed the appeal on the basis of this Commission’s orders in D.K. Gandhi Vs. M. Mathias, (2007) 2 CPC 422 dated 06.08.2007, which was stayed by the Hon’ble Supreme Court in SLP (Civil) No. 3052 of 2008.

The said order was impugned in the Present petition on the grounds that (i) the judgment in K. Gandhi (supra) is not applicable to the instant case and the same is also stayed by the Hon’ble Supreme Court; (ii) the respondents are not ‘consumers’ under the Act as no proof of consideration for services has been evidenced; (iii) awarding compensation is without basis as there no evidence on record regarding the loss incurred by the respondents; (iv) a complaint of cheating is not maintainable under section 2(1)(d) of the Act; (v) orders of the fora below are perverse.

The National Commission observed that from the records it is apparent that the petitioner has challenged the impugned order on the very same grounds which were raised before the District Forum as well as the State Commission in appeal. The concurrent findings on facts of these two foras are based on evidences led by the parties and documents on record. The present revision petition is therefore an attempt by the petitioner to urge this Commission to re-assess, re-appreciate the evidence which cannot be done in revisional jurisdiction. Learned counsel for the petitioner has failed to show that the findings in the impugned order are perverse.

This Commission, in exercise of its revisional jurisdiction, is not required to re-assess and re-appreciate the evidence on record when the findings of the lower fora are concurrent on facts. It can interfere with the concurrent findings of the fora below only on the grounds that the findings are either perverse or that the fora below have acted without jurisdiction. Findings can be concluded to be perverse only when they are based on either evidence that have not been produced or based on conjecture or surmises i.e. evidence which are either not part of the record or when material evidence on record is not considered. The power of this Commission to review under section 21 of the Act is therefore, limited to cases where some prima facie error appears in the impugned order. Different interpretation of same sets of facts has been held to be not permissible by the Hon’ble Supreme Court.

Reliance was placed upon the Judgment of T Ramalingeswara Rao (Dead) Through LRs & Ors Vs. N Madhava Rao and Ors, wherein it was held as under:

“12. When the two Courts below have recorded concurrent findings of fact against the Plaintiffs, which are based on appreciation of facts and evidence, in our view, such findings being concurrent in nature are binding on the High court. It is only when such findings are found to be against any provision of law or against the pleading or evidence or are found to be perverse, a case for interference may call for by the High Court in its second appellate jurisdiction.”

On basis of the above, it was observed that the foras below have pronounced orders which are detailed and have dealt with all the contentions of the petitioner which have been raised before the Commission in this revision petition. It is also seen that the orders of these fora are based on evidence on record. In view of the settled proposition of law that where two interpretations of evidence are possible, concurrent findings based on evidence have to be accepted and such findings cannot be substituted in revisional jurisdiction.

On basis of the above, the Petition was dismissed.

FULL TEXT OF THE JUDGMENT/ORDER OF NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

1. This revision petition under section 21(b) of the Consumer Protection Act, 1986 (in short, the “Act’) assails the order dated 26.10.2017 in First Appeal No. 737 of 2016 of the State Consumer Disputes Redressal Commission, Haryana, Panchkula (in short, the ‘State Commission’) dismissing the appeal of the petitioner against order dated 04.07.2016 of the District Consumer Disputes Redressal Forum, Sonepat (in short, the ‘District Forum’) in Consumer Complaint no. 295 of 2014.

2. The facts as per the petitioner are that the petitioner and one J.K. Rohilla, Advocate were engaged by the respondents for legal services in two Civil Suits instituted in 2011. Respondents filed a complaint before the District Forum for losses suffered by them due to deficiency in service as they had to engage a new counsel. Respondents also engaged the petitioner in Civil Misc. Appeal No. 55 of 2011 before the Additional District Judge, Sonepat on a pro bono On contest, the District Forum allowed the complaint and ordered payment of Rs.1,00,000/- for rendering deficient services and causing mental agony and harassment. The State Forum dismissed the appeal on the basis of this Commission’s orders in D.K. Gandhi Vs. M. Mathias, (2007) 2 CPC 422 dated 06.08.2007, which was stayed by the Hon’ble Supreme Court in SLP (Civil) No. 3052 of 2008.

3. This order is impugned in this petition on the grounds that (i) the judgment in K. Gandhi (supra) is not applicable to the instant case and the same is also stayed by the Hon’ble Supreme Court; (ii) the respondents are not ‘consumers’ under the Act as no proof of consideration for services has been evidenced; (iii) awarding compensation is without basis as there no evidence on record regarding the loss incurred by the respondents; (iv) a complaint of cheating is not maintainable under section 2(1)(d) of the Act; (v) orders of the fora below are perverse.

4. I have heard the learned counsel for both the parties and carefully considered the material on record.

5. The petitioner argued that the order of the State Commission was erroneous and had incorrectly appreciated the evidence. It was submitted that the respondents engaged various counsel during the course of Civil Suit no. 695/2011, Shiv Kumar Vs. Ram Kali. The plaint was drafted by advocate J.K. Rohilla and submitted through advocate Vivek Gaur. Respondents did not pay any fees to the petitioner for the services which was stated before the District Forum on affidavit. The petitioner was working under advocate J.K. Rohilla and acting under his instructions and cannot be held vicariously liable for the negligence of the counsel. The complaint is stated to be filed for mala fide reasons in collusion with one Dharmpal Rathee. It is stated that no proof of payment has been brought on record. Petitioner states that disciplinary action against him in connection with enrolment as an advocate by the Delhi Bar Council and suspension of the license by the competent authority does not entitle the client to harass the advocate as it amounts to double jeopardy. SPetitioner relies upon Nandlal Lohariya Vs. Jagdish Chand Purohit & Ors., SLP(C) Diary No. 24842 dated 08.11.2021, 2021 INSC 708 which held that where a litigant loses a case, deficiency in service cannot be alleged.

6. Per contra, learned counsel for the respondent argued that the petitioner had failed to bring all the records on the record. It was argued that the District Forum held that the petitioner/opposite party represented himself as an advocate while being aware that his degree of law was forged and fabricated and was therefore liable to compensate the respondent/complainant. The State Commission dismissed the appeal holding the order to be well reasoned based on law and facts. It was contended that the Bar Council of Delhi vide its order dated 06.07.2012 held the LLB Certificate of the petitioner to be forged and fabricated and suspended the licence and thereafter, on 26.08.2012, cancelled the licence. An FIR no.241 dated 20.06.2013 was also registered in Hauz Khas Police Station, New Delhi. It is argued that the petitioner provided deficient services on the basis of a false representation as a qualified advocate. The matter in K. Gandhi (supra) pertains to the genuine services by a registered advocate and therefore its pendency in the Hon’ble Supreme Court does not entitle the petitioner to any relief.

7. The finding of the District Forum reads as below:

Learned counsel for the complainant has submitted that they engaged the respondent as their counsel and was paid handsome amount for the service of the respondent in a Civil Suit titled as Shiv Kumar and Others vs Ram Kali, Civil Suit no.226 of 2013 and another Civil Suit titled as Ram Phal and others vs Smt Shamo, Civil Suit no. 694 of 211. In an enquiry conducted by the Bar Council of Delhi, the certificate of LLB of the respondent was found to be false and fabricated and the same was suspended vide order dated 26.08.2012 and thereafter it was cancelled under the proviso of Advocate Act, 1961. The respondent was engaged by the complainant no.1 prior to cancelling of licence of the respondent and in this way, the respondent has cheated the complainant and has committed criminal offence. FIR No. 241 dated 20.06.2013 under section 420/468 etc., was lodged with PS Hauz Khas, South Delhi against the respondent. The respondent is liable to pay compensation to the complainants for the losses suffered by them, but of no use and that amounts to a grave deficiency in service on the part of the respondent.

The respondent in person has submitted that he did not charge any fees from the complainant. The services rendered by the advocate/ respondent does not fall under the definition of Consumer Protection Act. The complainants are well educated persons and they signed the plaint after carefully reading the same. The respondent was not engaged as an advocate in case Shiv Kumar vs Ram Kali. Dharam Pal Rathee etc., got cancelled the licence of the respondent in collusion of official of Patna College and DBC Delhi in July 2012. The plaint is not drafted and signed by the respondent, but it was duly signed by Vivek Gaur Advocate. This Civil suit was drafted and signed by J K Rohila, Advocate. Thus, the respondent has not committed any civil and criminal offence. The complainants are guilty of misrepresentation of the fact. The complainants have not been cheated by the respondent. There is no deficiency in service on the part of the respondent. The complainants are not entitled for any relief and compensation.

But we find no force in the contentions raised by the respondent. The plea of the respondent that he has not received any amount from the complainants, cannot be believed in any manner because the respondent prior to the disputed incident, has conducted the proceedings of the case of the complainants for many dates. The case, in which the respondent was engaged as an advocate, is still pending and due to the disputed incident, the complainants have to engage some other counsel by paying another fees to the said counsel. It is also not disputed that the FIR was lodged against the respondent and his degree was also found forged. So, in our view, the respondent has rendered deficient services to the complainant which not only has caused unnecessary mental agony, harassment, but has also caused a huge financial loss. The respondent’s act and conduct has played with the sentiments of poor complainants which was never expected by the complainants from an advocate being involved in a honest and golden profession as it was well within the knowledge of the respondent that he is having forged and fabricated degree, but despite that he ensured to provide his services to the complainants. Thus, it is held that definitely the respondent is liable to compensate the complainant.

[Emphasis added]

8. The State Commission’s order states as follows:

6. Learned counsel for appellant – OP vehemently argued that when complainants engaged him in the year 2011 he was having valid licence issued by Bar Council of Delhi. The licence was suspended in the month of July 2012 and thereafter he did not appear in any case. No loss has been caused to complainants, because they have engaged another counsel. He did not charge any fees and that is why complainants were not covered by the provisions of the Act. Services rendered by an advocate free of costs is not covered by provisions of Act. Learned District Forum failed to take into consideration this aspect and wrongly awarded compensation. So impugned order be set aside.

7. This argument is of no avail. Hon’ble National Commission has clearly opined in D K Gandhi vs M Mathias 2007 (2) CPC 422 that if there is deficiency in service rendered by lawyer the same is covered by provisions of Act. Appellant has failed to show any law contrary to this view. Further appellant has no-where alleged that he conducted all the cases free of charge. If he charges fees in some cases and render service free of charge in some cases it does not mean that he is not covered by the provisions of the Act. More over in this case appellant was well aware that he was not qualified from competent college to obtain licence for practice. He false represented before Bar Council of Delhi as well as complainants. Ultimately his licence was cancelled. Due to mis-representation of appellant they were forced to engage another counsel and spent huge money. Had he not misguided them they would not have engaged him. Learned District Forum has taken into consideration each and every aspect from every angle. Impugned order is well reasoned based on law and facts and cannot be disturbed. Resultantly appeal fails and the same is hereby dismissed.”

[Emphasis added]

9. From the records it is apparent that the petitioner has challenged the impugned order on the very same grounds which were raised before the District Forum as well as the State Commission in appeal. The concurrent findings on facts of these two foras are based on evidences led by the parties and documents on record. The present revision petition is therefore an attempt by the petitioner to urge this Commission to re-assess, re-appreciate the evidence which cannot be done in revisional jurisdiction. Learned counsel for the petitioner has failed to show that the findings in the impugned order are perverse.

10. This Commission, in exercise of its revisional jurisdiction, is not required to re-assess and re-appreciate the evidence on record when the findings of the lower fora are concurrent on facts. It can interfere with the concurrent findings of the fora below only on the grounds that the findings are either perverse or that the fora below have acted without jurisdiction. Findings can be concluded to be perverse only when they are based on either evidence that have not been produced or based on conjecture or surmises i.e. evidence which are either not part of the record or when material evidence on record is not considered. The power of this Commission to review under section 21 of the Act is therefore, limited to cases where some prima facie error appears in the impugned order. Different interpretation of same sets of facts has been held to be not permissible by the Hon’ble Supreme Court.

11. The Hon’ble Supreme Court in Rubi (Chandra) Dutta (2011) 11 SCC 269 dated 18.03.2011 has held that:

“23. Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora.”

12. Reiterating this principle, the Hon’ble Supreme Court in Lourdes Society Snehanjali Girls Hostel and Ors vs H & R Johnson (India) Ltd., and Ors. (2016) 8 SCC 286 dated 02.08.2016 held:

“17. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons.”

13. The Hon’ble Supreme Court in its judgment dated 05.04.2019 in the case of T Ramalingeswara Rao (Dead) Through LRs & Ors Vs. N Madhava Rao and Ors, Civil Appeal No. 3408 of 2019 dated 05.04.2019 held as under:

“12. When the two Courts below have recorded concurrent findings of fact against the Plaintiffs, which are based on appreciation of facts and evidence, in our view, such findings being concurrent in nature are binding on the High court. It is only when such findings are found to be against any provision of law or against the pleading or evidence or are found to be perverse, a case for interference may call for by the High Court in its second appellate jurisdiction.”

14. The foras below have pronounced orders which are detailed and have dealt with all the contentions of the petitioner which have been raised before me in this revision petition. It is also seen that the orders of these fora are based on evidence on record. In view of the settled proposition of law that where two interpretations of evidence are possible, concurrent findings based on evidence have to be accepted and such findings cannot be substituted in revisional jurisdiction, this petition is liable to fail.

15. I, therefore, find no illegality or infirmity or perversity in the impugned order warranting any interference of this Commission. The present revision petition is, therefore, found to be without merits and is accordingly dismissed. Parties will bear their own costs. Pending IAs, if any, also stand disposed with this order.